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V 


JUL  1 0  ijiS 

'MNDERY 
/^-»  .-i.  Spring  Sf.,    L.  <^ 


LAW   LIBRARY 
OF 

I  y 


RIGHTS  AND  DUTIES 


OF 


MERCHANT     SEAMEN 


A  TREATISE 


ON    THE 


RIGHTS    AND    DUTIES 


OF 


MERCHANT     SEAMEN, 


ACCORDING    TO   THE 


^;encral  maritime  Caru, 


AND  THE  STATUTES  OF  THE  UNITED  STATES. 


Herein  are  the  good  ordinances  of  the  Sea,  which  wise  men,  who  voyaged  round  the  world,  gave  to  our  ancestors,  and 
which  constitute  the  books  of  tlic  science  of  good  customs. 

Tlie  Consulate  q/°  the  Sea. 


By  GEORGE  TICKNOR  (JURTIS, 

OF     THE     BOSTON      BAK. 


li  O  S  T  O  N  : 
CHARLES    C.   LITTLE    AND    JAMES    HROWN. 


MDCCCXLI. 


Entered  acconiing  to  Act  of  Congress,  in  tlio  year  1811,  hy 

Geohqe  T.  Curtis, 

in  the  Clerk's  Office  of  the  District  Court  of  the  United  Slates  for  the  District  of  Massachusetts. 


T 
C9433r 


boston: 

printed  bv  1  keemas  and  bolles, 

washinctoin  street. 


b 


TO 


THE  HONORABLE 


JOSEPH    STORY,    LL.D., 

ASSOCIATE   JUSTICE    OF   THE   SUPREME    COURT   OF   THE    UNITED   STATES, 
DANE   PROFESSOR   OF   LAW   IN   HARVARD   UNIVERSITY,    ScC.  5^C. 

WHOSE  NAME   IS   IDENTIFIED 
WITH    THE 

MARITIME     JURISPRQDENCE 

OF    AMERICA, 

IS   MOST    RESPECTFULLY   DEDICATED, 

BY  THE  AUTHOR. 


7^D23'I 


PREFACE. 


The  writer  of  this  Treatise  is  no  friend  to  the  multipli- 
cation of  law  books.  Yet  he  finds  himself,  at  an  early 
period,  again  about  to  commit  to  the  public  a  legal  pub- 
lication, which,  though  it  may  need  little  in  the  way  ol 
introduction,  to  claim  for  its  subject  a  ready  attention, 
may  require  much  in  the  way  of  apology  for  the  manner 
in  which  it  is  treated. 

Having  taken  the  persons  employed  in  navigation  out 
of  the  general  law  of  Shipping,  I  sought  to  trace  their 
rights  and  duties  back  to  those  veneral)le  codes  of  the 
sea,  in  which  the  spirit  of  a  thorough  jurisprudence,  such 
as  might  well  relieve  the  middle  ages  of  Europe  from  the 
epithet  of  "  dark,"  seems  fo  have  been  fully  equal  to  all 
the  wants  of  maritime;  affairs,  as  they  existed  at  the 
time,  and  scarcely  falls  short  of  satisfying  the  exigen- 
cies of  niodeni  commerce.  The  ])lcasure  of  these  in- 
vestigations   richly    compensated    for   any   labor.      It    is 


Vlll  PREFACE. 

sur})risinii  how  nmplc  arc*  tlic  nialcrials  croalcd  by  those 
early  commercial  states,  whose  ]io^iiive  and  customary 
regulations  constitute  the  sources  of  the  maritime  law, 
but  whose  mai;Miliccnce  and  power  have  long  since  van- 
ished from  tlie  shores  of  the  sea,  which  has  not  refused  to 
transmit  the  imperishable  traces  of  their  laws.  Whoever 
transfuses  these  materials  into  modern  jurisprudence,  will 
not  onlv  find  that  they  give  the  force  and  authority  of 
antiquitv  to  what  is  in  daily  practice  at  the  present  time, 
but  he  will  be  struck  with  the  wide  range  of  materials 
thus  opened  for  enlarging  and  illustrating  the  principles 
demanded  by  new  questions,  as  they  arise.  It  is  almost 
solely  by  the  use  of  such  materials  so  applied,  that  ad- 
vances arc  made  in  the  science  of  the  law.  Whoever 
has  long  studied  any  of  its  branches  has  found  that  in- 
ventions and  discoveries  pertain  mostly  to  the  physical 
sciences.  "  The  literature  of  the  present  day,"  says 
Chancellor  Kent,  "  'rich  with  the  spoils  of  time,'  instructs 
by  the  aid  of  the  accumulated  wisdom  of  ages." 

Another  reason  led  to  this  effort  to  treat  in  a  separate 
work  the  rights  and  duties  of  the  persons  composing  a 
ship's  company.  The  jurisprudence  of  this  country  has 
done  much  for  mariners,  and  an  honorable  credit  may  be 
claimed  for  it  on  this  account.  Many  of  the  doctrines, 
for  their  protection,  have  been  carried  further  by  some  of 
our  courts  than  by  any  other  tribunals  whose  decisions 
are  recorded  in  the  English  language.    But  the  evidences 


PREFACE.  IX 


of  this  lie  in  scattered  decisions,  and  those  only  who  are 
accustomed  constantly  to  resort  to  the  reported  cases  can 
know  what  the  doctrines  in  fact  are.    To  bring  together 
these  materials  and  exhibit  the  results  for  which  the  judi- 
cial tribunals  and  the  legislative  authority  of  the  country 
may  claim  credit,  has  been  a  part  of  my  design.     It  has 
also  been  a  part  of  that  design  to  exhibit,  as  a  whole, 
the  mariner's   contract,  as  it  is  know^n  to  the  general 
maritime  law  ;    a  contract,   diftcring  in  many  essential 
points   from  all    contracts   of  service    upon  land,   gov- 
erned  by  a  law  that  is  "  not  the  law  of  a  particular 
country,"  but  the  result  of  the  Osage,  the  tacit  conven- 
tion and  the  positive  institutiorts  of  the  great  family  of 
commercial  nations.     It  seemed  to  me  that  the  science 
of  the  law  ought  to  devote  gi'cat  attention  to  the  persons 
employed  in  navigation  ;  for  to  ascertain  and  reconcile 
the  rights  and  duties  of  those  into  whose  hands  such 
vast  masses  of  property  are  entrusted,  is  one  of  the  surest 
modes   by  which  to  multiply  securities  around  national 
and  individual  wealtli,  and  to  give  to  the  moral  qualities 
of  man  a  new   power  over  the  elements  to  which  that 
wealth  is  exposed. 

But  in  writing  a  treatise,  the  chief  practical  value  of 
which  should  be  to  state  the  law  of  one's  own  country 
anfl  time,  it  was  of  course  impossible  to  do  more  than  to 
refer  the  reader  to  lliosc  sources  from  which  apl  illus- 
trations and   kindred  doctrines  may   be   drawn,   in   the 

b 


X  rUEFACE. 

institutions  of  other  times  or  coiintrios.  Tlicsc  rcferonces 
I  li.iM"  sonictinios  accunnilated  upon  j^jiMU'ral  doctrines 
\\v\\  csiablislied  in  onr  ou  n  and  ilic  Cniilish  h\\\  ;  csjje- 
cialK  in  citations  from  the  i;klcr  marine;  ordinances.  I 
have  done  so,  l)ccause  I  liave  found  that  upon  these  sub- 
jects, investigation  may  be  pursued  into  those  authorities 
for  lii^hi  uj)oii  ncn  (juestions,  to  great  advantage.  The 
texts,  of  which  I  liavc  made  use  in  citing  the  marine 
laws  and  ordinances,  are  tliose  of  tlie  magnificent  collec- 
tion of  M.  Pardessus,  published  at  Paris,  in  four  volumes 
folio,  from  1828  to  1837.^  I  should  also  have  referred  to 
the  editions  and  texts  of  the  same  codes  which  have 
heretofore  been  in  use,  but  for  the  fact  that  they  are  of 
very  little  value  compared  with  those  of  the  learned 
French  advocate,  who  has  given  us,  with  great  accuracy 
and  laborious  collation,  all  that  the  libraries  of  Europe 
have  preserved  of  these  compilations.  The  work  is 
known  to  some  of  our  private  libraries,  and  it  ought  to 
be  known  to  the  public  institutions. 

I  have  cited  the  various  cases  adjudicated  in  our  Su- 
preme, Circuit,  and  District  Courts  of  the  United  States, 
and  the  several  State  Courts,  without  distinguishing  at  all 
what  weight  of  authority  belongs  to  each.  To  the  pro- 
fessional American  reader,  this  was  unnecessary ;  every 


>  Collection  de  Lois  MAniTisiEs  Akterieurks  ac  XVIII."  Siecle,  par 
J.  M.  Pardessus,  Conseiller  a  la  Cour  de  Cassation,  etc.  etc.  There  is 
a  fifUi  volume,  whicli  I  have  not  vet  seen. 


PREFACE.  XI 

one  affixes  at  once  the  proper  authority  to  a  decision 
when  he  reads  the  name  of  the  tribunal  pronouncing 
it.  The  foreioii  reader  has  little  occasion  to  inform 
himself  of  the  shades  of  distinction  between  the  dif- 
ferent branches  of  our  apparently  complicated  judicial 
system.  AVhatever  interest  or  attention  he  bestows  upon 
our  law,  must  in  the  main  depend  upon  the  intrinsic 
soundness  of  the  doctrine;  except  in  those  instances, 
where  he  is  inquiring  for  the  actual  state  of  our  law, 
when  the  known  reputation  of  the  judges,  or  the  high 
constitutional  position  of  the  court,  add  to  the  intrinsic 
merit  of  a  decision  the  acknowledged  weight  of  eminent 
station  and  authority. 

I  am  aware  that  this  subject  might  have  been  com- 
pressed into  a  very  short  compass.  Some  parts  of  it  have 
occupied  but  a  narrow  space,  in  the  text  writers  upon  the 
law  of  shipping.  But  condensation  is  sometimes  accom- 
plished at  the  expense  of  completeness";  and  having  never 
seen  a  treatise  upon  the  same  sul)jects  which  I  felt  willing 
to  follow  as  a  model,  I  June  preferred  my  own  conception 
of  the  proper  outlines  and  limits  of  the  subject.  The 
profession,  for  \\lioni  this  work  is  mainly  intended,  are 
rarely  critical  with  an  antlior,  who  is  uscfid  to  their 
studies  ;  and  in  the  hope  that  the  faults  of  tin;  work  may 
escape  censure  under  this  special  verdict,  1  commit  it  to 
their  indulgence. 

Brooks's  BriLDiNos, 
Boston,  June,  1841. 


CONTENTS. 


PART  FIRST. 
CHAP.  I. 


Page 

Of  the  Distinctive  Professional  and  National  Character  of  Mer- 
chant Seamen  ........         3 

CHAP.  H. 

Of  the  General  Nature  of  the  Mariner's  Contract,  and  the 
Parties  thereto  .         .         .         .         .         .         .         .11 

CHAP.  HI. 

Of  the  Written  or  other  Evidence  of  the  Mariner's  Contract ; 
and  herein  of  the  Form  and  Construction  of  the  Shipping 
Articles 86 

CHAP.  IV. 
Of  the  Different  Forms  of  the  Mariner's  Contract    .         .         .61 


PART  SECOND. 

CHAP.  I. 

Of  the  Master's  Aulliority  and  Office  in  Relation  to  the  Crew 
and  Passengers  ........       79 

CHAP.  H. 
Of  the  Aulliority  and  Office  of  the  Mate         ....       94 

CHAP.  Ill 
Of  the  Subsistence  and  Sickness  of  the  Mariners  .         .       100 


\IV  CONTENTS. 

Pago 

CHAP.  IV. 

Of  OfTenccs  npainst  the  Discipline  and  Economy  of  the  Ship 

and  the  rubUc  Law  .  .         .  .         .         .         .118 

CHAP.  V. 
Of  the  Discharge  of  Seamen  ......     148 


PART  THIRD. 

CHAP.  I. 

Of  the  Master's  Relation  to  the  Vessel  and  its  Owners     .         .     IGl 

CHAP.  H. 
Of  the  Master's  Relation  to  the  Cargo 206 

CHAP.  HI. 
Of  the  Master's  Relation  to  the  Freight  .         .         ,         .     240 

CHAP.  IV. 

Of  the  Master's  Wages,  Disbursements,  and  Advances     .         .     251 


PART  FOURTH. 

CHAP.  I. 

Of   the  time  within   which   Payment  of   Wages  may   be   de- 
manded and  Enforced         .......     263 

CHAP.  II. 
Of  Wages  as  Affected  by  various  Interruptions  of  the  Voyage      271 

CHAP.  III. 
Of  the  Principles  of  Forfeiture  Applicable  to  Wages        .         .     303 


PART  FIFTH. 

CHAP.  I. 
Of  the  Remedy  of  Mariners  for  their  Wages  .         .         .     313 


CONTENTS.  XV 

Page 
CHAP.  II. 

Of  the  Civil  Remedies  of  Mariners  for  Personal  Torts      .         >.     337 

CHAP.  III. 

Of  the  Admirahy  and  Common  Law  Jurisdictions  in  Mariner's 

Cases         ..,....•••     342 


APPENDIX. 

I. 

Extracts  from  the  Records  of  the  Vice  Admiralty  Court  for  the 
Province  of  Massachusetts  Bay  .....     371 

II. 

Various  Forms  of  Shipping  Articles        .....     383 

HI.  I 

Statutes  of  the  United  States 399 

IV. 

Miscellaneous        ...  428 


INDEX  TO  CASES  CITED. 


A. 

rage 

Adams  v.  The  Sophia 

274 

Aertsen  v.  The  Aurora 

89,  359 

Agincourt,  The             85,  87, 

88,  338 

Alexander,  The 

161 

Alfridson  v.  Ladd 

278 

Allen  V.  Sewall 

171 

Allen  V.  Sugrue 

187 

Alleson  v.  Marsh 

348 

American  Ins.  Co.  v.  Center  188,230 

American  Ins.  Co.  r.  Coster 

226 

Amory  v.  M'Gregor 

202 

Amphitrite,  The 

131 

Anne,  Tlie 

5,  348 

Anonytnoiis  (I  L'd.  Raym.) 

275 

Anon.  (Winch.) 

348 

Anon.  (3  Mod.) 

348 

Anieiope,  The 

359 

Apollon,  Tlie 

362 

Appleby  v.  Dods 

45,56 

Armies  v.  Stevens 

216 

Arthur  v.  Barton, 

173 

Aspinwall  V.  Barllett 

330 

Attorney  General  v.  Case 

196 

Atkinson  v.  Cotesworth 

253 

Aikyns  v.  Burrows 

30,  96 

Augusta,  The 

176,  249 

Aurora,  The 

176 

Bartol  V.  Dodge  212 

Batavia,  The  SH 

Baxter  v.  Rodman  13,  75 

Baylies  i'.  Feltyplace  247 

Bayley  v.  Grant  348 

Beaver,  The  300 

Beale  v.  Thompsoa  279 

Bell  V.  Read  209,  220 

Bens  V.  Parr  348 

■  Bennet  v.  Moita  196 

'  Benjamin  Franklin,  The  20,  315 

i  Bird  V.  Astcock  219 

Blunchard  r.  Bucknam  71,  131 

Blanck  v.  Soley  242 

.  Blake,  The  146,  306 

Bland,  E.rparte  172 

'  Black  V.  The  Louisiana  5,  150,  309 


B. 

Baker  v.  Buckle 
Baltic  :\Iercliant,  The 
Bangs  V.  Little 
Barber  v.  Bruce 
Barker  v.  Haven 
Bartlelt  v.  Wymau 
C 


173 

130,  305 

81,  35,  337 

212 

246 

47 


Boardman  i'.  The  Elizabeth 
Boedes  Lust,  The 
Bolina  and  Cargo,  The 
Bolton  V.  Am.  Ins.  Co. 
Bond  V.  Brig  Cora 
Boreal  v.  The  Golden  Rose 
Boson  V.  Sanford 
Boucher  v.  Lawson 
Bowcher  v.  Noidstrom 
Boyce  r.  Baylill 
Boston  and  Cargo,  The 
Bracketl  v.  The  Hercules 
Bradstreet  v.  Baldwin 
Bray  v.  The  Atalanta 
Breed  v.  Ship  Venus 
Brice  v.  The  Nancy 
Brower  t'.  The  Maiden 
Brown  v.  Howard 
Brown  V.  .lones 


71 

283 

353 

211 

236 

178 

170 

168 

195 

92 

35,  236 

285 

245 

17,  135,  309 

175 

48 

91 

85,  337 

25,  39,  40,  41 


Brown  v.  Lull     43,  44,  45,  56,  .W,  69, 

71,237 
Brown  v.  Benn  348 


will 


INDEX    TO 


CASES    CITED. 


Erown  V.  The  Neptune  1^7 

Kroiiiickcr  r.  Scull  191 

Brooks  r.  Bonsey  3:^1 

Brooks  V.  Dorr  228,  279 

Broiule  v.  Haven  276 

Brutus,  The  40,  75 

Bryant  v.  Com.  Ins.  Co.  230 

Buck  r.  Lane  309 

Buller  V.  Fisher  219 

Bul!?in  V.  Tl>o  Rainbow  177,  256 

Buluicr,  Tlie  130 

Burgon  v.  Sliarpe  16S,  236 

Bussy  t».  Donaldson  196 
Buller  V.  McLellau  26,83,85,86,337 

Buxton  V.  Snee  173 


C. 


Calypso,  The  360 

Cambridge  v.  Anderson  191 

Cambridge,  The  26, 138,  298 

Carrutliers  r.  Sydebotham  196 

Carey  r.  The  K'ittey  295 

Case  i".  Baltimore  Ins.  Co.  246 

Case  V.  Davidson  331 

Castilia.  The  24,  131 

Centurion,  The  35,  85,  338 

Center  7?.  Amer.  Ins.  Co.  188 

Chamberlin  v.  Chandler  92,  360 

Chandler  v.  Belden  244 

Chapman  v.  Durant  202 

Champlin  r.  Butler  331 

Cheviot  V.  Brooks  237 

Christie  v.  Lewis  243,  244,  334 

Christiana,  The  196 

Christy  v.  Row  245 

Citv  of  Edinburgh,  The  290 

City  of  London,  The  299 

Clark  V.  Curtis  24 

Clarkson  v.  Edes  224,  334 

Clark  V.  Mass.  Fire  and  Marine 

Ins.  Co.  229 

Clayton  v.  The  Harmony  285 

Clay  V.  Sudgrave  252,  350 

Clement  r.  Gunhouse  366 

ClilTord  v.  Hunter  97 

Cloutman  v.  Tunison     54,  130,  138, 

304 
Coffin  V.  Storer  249,  286 

Coke  V.  Cretchett  348 

Coolidge  V.  Gloucester  Mar.  Ins.  Co. 

331 
Cook  V.  Jennings  248 

Cooke  ?••  Com.  Ins.  Co.  207 


Coleman  v.  Brig  Harriet  105 

CoUon  I".  Hoii/ey  331 

Cost  t).  M'lMechan  219 

Cotel  r.  Hiliiard  133 

Countess  of  llarcourt.  The  26,41 
Courtney,  The  348 

Cowing  V.  Snow  253 

Cox  V.  Rcid  334 

Cranmer  r.  Gernon  71,276 

Cranmer  v.  The  Fair  American  143 
Crawford  v.  The  Wm.  Tcnn  180 
Crusader,  The  13,  39,  51,  70,  75 

Cutter  V.  Powell  68 

Curran  r.  Maeburn  225 


D. 


Dame  v.  Hadlock  173,  331 

Davis  V.  Garrett  236 

Davidson  v.  Gwynne  216 

David  Pratt,  The  55,  91 

Dawn,  The  154 

Day  V.  Bos  well  13,  75 

De  Lovio  v.  Boit  345 

Denison  v.  Seymour  198,  217 

Dias  V.  The  Owners  of  the  Revenge 

205 
Dixon  V.  The  Cyrus  19,  20,  307 

Dorr  V.  N.  Eng.  Marine  Ins.  Co.  249 
Douglass  V.  Moody  208 

Douglas  V.  Eyre  25,  41 

Draco,  The  353 

Drinkwater  v.  The  Freight,  &c.  of 


the  Spartan 
Duke  of  Bedford,  The 
Dundee,  The 
Dunnet  r.  Tomhagen 
Dunvegan  Castle,  The 


177,  243,  244 
180 
200 
286 
317 


Ealing  Grove,  The  131,  309 

Earle  v.  Rowcroft  118 

Eastern  Star,  The  319 

Edwards  v.  The  Susan  265 

Eliza,  The  24,46,131,250 

Elizabeth,  The  276,  302 

Elliott  f.RosscU  209 

Ellis  r.  Turner  170 

Ellison  V.  Ship  Bellona  43,  359 

Elwell  V.  Martin  26,  27,  99,  337 

Embden,  The  7. 


INDEX    TO    CASES    CITED. 


XIX 


Emerson  v.  Howland     154,  272,  2S0  Grand  Turk,  The 


Emery  v.  Hersey 
Enchantress,  The 
Exeter,  The 
Experiment,  The 


171.  209,  334  Graiitudine,  The 

85,  338  Gracie  v.  Palmer 

84,  85,  300,  305  Griggs  v.  Austin 
360 


F. 


253,  257 

208,  227,  228 

243,  334 

.    249 


H. 


Faith  V.  East  India  Co.  243 

Fanny  &-  Ehnira,  The  187 

Farmer  v.  Davis,  172 

Farrel  r.  jVI'Clea  202,  314 

Favorite,  The  252 

Fletcher  v.  Braddick  336 

Foot  r.  Wiswall  198, 

Fontaine  v.  Col.  Ins.  Co.  226 1 

Fontaine  v.  PhcEnix  Ins.  Co.  187  ■ 

Forest,  The  107 

Fortitude,  The  176,  200 

Forward  v.  Piitard  220 

Francis  v.  Ocean  Ins.  Co.  194,  237  , 
Frazier  t;.  Marsh  336 

Frederick,  The  7,  13,  75,  359  ! 

Frederick  v.  The  Brig  Fanny  145  ' 
Freeman  v.  East  India  Co.  225,  230  ' 
Friends,  The  279 

Frothinjrham  v.  Prince  286 


G. 


Galloway  v.  Morris  71,  276 

Gale  V.  Lowrie  200 

Garrigues  v.  Coxe  216 

Gardner  v.  The  New  Jersey   39,  103 
Garnham  r.  Bennet  172 

General  Interest  Ins.  Co.  v.  Ruggles 

170 
General  Palmer,  The  290 

General  Smith,  The  353 

George.  The  Brig  98,  1 1 0,  252 

George  the  Third,  The  9 

George  Home,  The  26,  41  | 

Giddings,  Erparle  75,  291 

Giles  V.  The  Cynthia       71,  241,  267 
Girolamo,  The  190 

Girard  v.  Ware  223,  279 

GofTw.  Ciinkard  212 

Gondolier,  The  47 

Goodrich  i.  Lord  250 

Goodridgc  ?-.  Lord  209,  317 

Gordon  v.  Fire  and  Marine  Ins.  Co 

187 
Gould  V.  Olivei  212 


Hadley  v.  Clarke  247,  283 

Hagedorn  v.  Whitmore  219 

Hahn  v.  Corbet  219 

Halletr.  Col.  Ins.  Co.  335 

Hall  V.  The  Franklin  Insurance  Co. 

190,  230 
Halscett,  Ex  parte  177,  255 

Hammond  v.  Essex  Fire  and  Ma- 
rine Ins.  Co.  331 
Hancox  v.  Fishing  Ins.  Co.  75,  274 
Hand  v.  The  Elvira  290 
Hannay  v.  Eve  195 
Happy  Return,  The  290 
Harden  v.  Gordon  28, 43, 45,  46, 53,  55 
Harris  v.  Watson  29 
Harriot,  The  76 
Harrington  v.  Lyles  209 
Hart  V.  The  Littlejohn  279 
Harvey,  The  47 
Hastings  v.  The  Happy  Return 

112,  265 
Hayman  v.  Moulton  187 

Henry  Ewbank,  The  236 

Herbert  v.  Hallet  233 

Herron  v.  The  Peggy  136 

Hero,  The  176 

Hind  man  r.  Shaw  297 

Hiram,  The  248 

Hobart  v.  Drogan  5,  2S9,  348 

Hodgson  V.  Butts  257 

Hodgson  V.  Malcolm  219 

Hollhung,  The  217,  247 

Iloghton,  The  46 

Holmes  i-.  Hutchinson  113 

Holmes  V.  Bradshaw  266 

Hooper  v.  Perlcy  71,  276 

Hoskins  v.  Slay  ton  203 

Howland  v.  The  Lavinia  279 

Howe  V.  Napier  348 

Hoyt  t'.  Wildfire  272 

Hudson  V.  Guest ier  359 

Hurry  v.  The  John  &  Alice  180 

Hulle  V.  Heightraan  340 

Hunter  v.  Potts  216 

Hunter?.  Prinsep  230,231 

Hunter,  The  176 

Hurry  v.  The  Assignees  of  Hurry  169 


XX 


INDEX    TO    CASES    CITED. 


ITiissey  r.  Christie  177,  253 

Iluirlilnson  v.  Coombs  150,  301,  337 
Hulson  r.  Jordan  337 


I. 


Icaril  r.  noiil.l  274 

Idle  V.  Koyal  Exch.  Tns.  Co.  191 

Injiersoll  v.  Van  Bokkelin  251 

Isabella,  The  47,  24S 


Jacob,  The  249 

JaiDes  V.  Bixby  173,  202 

James  v.  he  Roy  14 

Jameson  r.  The  Re<iulus  51,  53 

Jane  &:  Matilda,  The  14 

Jane,  The  36 

Jarvis  r.  The   Master   of  the 

Claiborne  85 

Jenks  V.  Lewis  337 

Jennv  v.  AUlen  341 

Jerusalem.  The  200,  357 

Jesse  V.  Rov  45,  56 

Johnson  r.  The  Walterstorff   58,  71. 

268 
Jolinson  V.  Dalton,  47,  359 

Johan  ic  Siegmuod,  The  166 

Jones  V.  Smith  71,  276 

Jones  V.  The  Phajnix  136 

Jordan  v.  Warren  Ins.  Co.  234 

Joseph  Harvey,  The  290 

Juliana,  The  45,  56,  267 

154 


Juniata,  The 


K. 


Kamraerheve  Rosenkrantz, 
Keane  v.  The  Gloucester 
Keene  v.  Lizardi 
Kemp  V.  Coushtry 
Kennersley  Castle,  The 
Kendrick  v.  Delafield 
Kimball  v.  Tucker 
Kin<j  V.  Lennox 
King  I'.  Racg 


Knagg  f .  Goldsmith 


L. 


Lady  Durham,  The 


54, 


The  318 

300 

92 

171,219 
162 
206 
209 
168 
348 

130,  305 


271 


Lady  Campbell  147 

Lamson  r.  Westrott  116 

Langdon  Cheeves,  The  20,  315 

Lane  c.  Penniman  245,253 

Latham  v.  Lawrence  76 

Law  V.  HoUingworth  210 

Leander,  The  20,315 

Le  Caux  v.  Eden  361 

Lemon  ?'.  Walker  278 

Lennox  r.  Union  Ins.  Co.  212 

Leonard  r.  Muntmgton  203,  330 
Lewis  V.  The  Elizabeth  &  Jane    2S6 

Lewis  V.  Davis  144 

LcNvis  r.  Hancock  253 

I/iddard  v.  Lopes  230 

Limland  v.  Stevens  26,  340 
Lima,  The  90,  122,  303 
Lindsay  v.  The  South  Carolina    278 

Lindo  V.  Rodney  362 

Locke  V.  Swan  71,  276 

Logs  of  Mahogany  243,  248 

Lord  Hobart,  The  5,  317 

Lowther  Castle,  The  85,  338 

Luke  r.  Lyde  229,  249 

Luscomb  V.  Prince  295,  366 

Lyon  V.  Mells  209 


M. 


Mackintosh  v.  Slade  196 

M'Bride  t-.  Marine  Ins.  Co.  247,  331 
Macomber  v.  Thompson     5,  75,  305, 

353 
Macadier  v.  Chesapeake  Ins.  Co. 

244,  334 

!  McTntvre  v.  Browne  244 

[Madonna  D'Idra  27,317 

JMair  ?;.  Glennie  13,75 

!  Maisonnaire  v.  Keating  228 

Major  V.  White  215 

Mageeu.  Ship  Moss  25,26,40,41,91 

Mahoon  v.  The  Gloucester  300 

Malta,  The  09,  271,  278 

Malone  v.  The  Mary  136 

Mai  pica  v.  M'Kowen  199 

Maria,  The  26 

Maria  Theresa  359 

Mary,  The  105,  139,  2C6,  322 

Martin  v.  Salem  Ins.  Co.  219 

Marcareit,  The  321,  359 

Marshall  r.  Montgomery  283 

Martha,  The  247 

Mariners  v.  The  Washington        106 

Mariners  v.  The  Kensington         143 


INDEX    TO    CASES    CITED. 


XXI 


Marquand  v.  Webb  172 

Mason  V.  Ship  Blaireau  236 

Mathews  v.  Offley  9,  157 

Mayo  V.  Harding  17,  326 

M'Clure  v.  Hammond  209 

M'CuUoch  V.  The  Lethe  48 
Mentor,  The       30,  54,  137,  269,  309 

Menetone  v.  Gibbons  183 

Michaelson  v.  Denison  90 

Mills  V.  Long  5,  348 

Miller  V.  Brant  309 

Millward  i'.  Hallet  174,  254 

Minerva,  The  38,  40 

MTntyre  v.  Scott  331 

M'lniyre  r.  Bowne  334 

Mitchell  V.  The  Orozimbo  96 

Moffat  V.  East  India  Co.  241 

Moore  r.  Jones  71,  251 

Montgomery  v.  Whatson  165 

Moran  v.  Bnudin  25,  298 

Morse  v.  Slue  198 

Morris  v.  Robinson  225 
Morgan  l-.  Ins.  Co.  of  N.  America  246 

M'Quirk  V.  The  Penelope  20,  274 

Muldon  V.  Whillock  172 

Mulloy  V.  Backer  241 

Muniford  v.  Com.  Ins.  Co.  232 
Murray  v.  Kellog           18,  26,  46,  71 

Murray  v.  Lazarus  249 


Orne  v.  Townsend 
Orozimbo,  The 
Oxuard  v.  Dean 


98,  154,  340 

30 

297 


N. 


Nathaniel  Hooper,  The  247 
Naterstrom  v.  The  Hazard  291,  293 
Nelson,  The  43,  176,  249 
Neptune,  The  200 
Neptune  the  Second,  The  196 
Nestor,  The  200,  315 
Newman  t;.  Wnlters  92 
New  Phcrnix,  Tlie  100 
New  Draper,  The  165 
New  Euir.  Ins.  Co.  v.  The  Bri?  Sa- 
rah Ann  189,  193 
Nichohas  Wil/f-n,  The  362 
Nijrhtin^ale  v.  Witliinaton  341 
Nin.rod,  The          23,  24,  83,  91,  228 


O. 

Oakey  v.  Russcl  202 

Onavia,  Tlie  362 

Oliver  t-.  Alexander  361 

Orleans,  The  Steamboat  253 


Packet,  The  177,  226,  253 

Palmer  v.  Lorillard  246 

Palmer  v.  Gooch  174 

Parry  v.  The  Peggy  355 

Paragon,  The  208,  318 

Panneter  v.  Todhunter  98 

Parker  v.  The  Calliope  47 
Patapsco  Ins.  Co.  v.  Southgate     188 

Paiion  V.  The  Randolph  178 

Pearl,  The  304 

Pelican,  The  10 

Percipal  v.  Hickey  274 

Peters  v.  Ballestier  168 

Peyroux  v.  Howard  320 

Pickman  v.  Wood  244 

Pierce  v.  The  Enterprise  28,  107 

Pierson  v.  Robinson  255 
Pitman  v.  Hooper  69,  71, 269, 276, 277 

Phillips  t'.  Headlam  210 

Phcche,  The  199,  336 

Phoebe,  The  v.  Dignum  136 

Plummer  v.  Webb  15.  354 

Poland   V.   The  Freight,  &c.  of 

the  Spartan  245 

Polydore  r.  Prince  337 

Portland  Bank  V.  Stubbs  249 

Porter  v.  Andrews  24 

Post  r.  Robertson  248 

Pratt  V.  Thomas  337 

Prendergast  r.  Compton  92 

Prince  Frederick.  The  43,  360 

Prince  George,  The  5,  47,  317 
Proprietors  of  Trent.  &  Mersey 

Navigation  v.  Wood  198 

Protector,  The  196 

Providence,  The  47 

Purviance  v.  Ansus  195 

Putnam  v.  The  Polly  180 

Putnam  v.  Wood  209 


Q. 


Queen,  v.  London 


R. 


Race-Horse,  The 


348 


247 


XXIl 


INPr.X    TO    CASES    (ITF.n. 


RnETC  V.  Kinij  252' 

Randall  r.  Rotch  15 

Rol)t<ci-a,  Tlie  170, 198,  269 

Rt'til  r.  Honliam  187 

Road  r.  Chapman  252 

Reed  V.  (^anlidd  28,  107 

Roed  I'.  Darby  1S7 

Rcrsido,  The  170,  198 

Reliance.  The  176 

Reir  r.  The  .Alari.i  85,  88,  309 

Reyn:ird  v.  Ikooknell  33 

Reynolds  r.  Toppan  170 

Rhadamanthe,  The  176 

Rice  V.  Austin  13,  75 
Rice  I'.  The  Tolly  &  Kitty  26,  85,89, 

300 

Rich  V.  Coe  172,  202 

Richmond.  The  30 

Richards  v.  Gilbert  209 

Riley  V.  Horn  222 

Ring  V.  Franklin  331 

Rinquist  c.  DilchcU  171 

Rising  Sun,  The  322 

Ritchie  v.  Bowsfield  196 

Robinson  r.  Lyall  173 
Robinson  r.  Comnionwealih  Ins. 


Co. 
Robinet  v.  The  Exeter 
Roberts  v.  Dallas 
Robertson  c.  Clark 
Rohl  r.  Parr 
Ross  r.  Ship  Active 
Rosher  v.  Busher 
Rowena,  The 
Rubi'-on,  The 
Ruckers,  The 


S. 


190 

84,  300 

85,88 

187 

219 
176, 226 

174 

54,  130 

162,  179 

360 


Saltus  V.  Ocean  Ins.  Co.       230,  232 
Salacia,  The  360 

Samuel,  The  362 

Sampson  v.  Smith  85,  86,  337 

Sancry's  Case.  362 

Sarah,  The  362 

Saratoga,  The  154,  228,  237 

Sarah  Ann,  The  187,  189,  269 

Saville  v.  Campion  243 

Scaife  v.  Tobin  217 

Schiefflin  v.  New  York  Exchange 

Ins.  Co.  229,  249 

Schooner  Exchange  i>.  M'Faddon  360 
Schiefflin  v.  Harvey  198,  223 

Schemerhorn  v.  Loinea  172 


Scott  V.  Greenwich  294 

Scott  V.  Libbey  248 

Scull  V.  liriddle  188 

Searle  v.  Scovell    208,  226,  232,  249 

See  Renter,  The  167 

Selden  v.  llendrickson  178 

Shaw  I'.  Gooking  254 

Shaw  V.  The  Lethe  5,  48 

Sharpe  v.  Gledstone  331 

Sherwood  v.  M'lntosh  26,  30 

Sherwood  v.  Hall  15,  199,  339 

Sheppard  v.  Taylor  20,  314,  324 

Shields  v.  Davis  194,  242 

Shiplon  V.  Thornton       229,  232,  233 

Sigard  v.  Roberts  24,  340,  366 

Sims  V.  Jackson  294 

Sims  V.  Gurncy  228 

Sims  V.  Sundry  Mariners      153,  237 

Simonds  v.  White  217 

Singstrom  v.  The  Hazard  279 

Siordet  v.  Hall  216 

Sir  Humphrey  Jervis's  Case  174 

Smith  r.  The  Pekin  352,362 

Smith  V.  Plummer  253 

Smith  V.  Scott  219 

Smith  V.  Wright  212 

Snellv.The  Independence  54, 137,305 

Snell  V.  Rich  196 

Soarhes  v.  Rahn  181 

Somes  V.  Sugrue  187 

SpafTord  v.  Dodge  228,  279 

Sproul  V.  Hemenway  196 

Spurr  V.  Pearson  142 

Steamboat  Orleans  253 

Steamboat  Orleans  v.  Phoebus      352 

Stewart  v.  Hall  174 

Steele  v.  Thacher  26,  337 

Stewart's  Case  20,  356 

Siilk  V.  Myrick  29 

St.  Jago  de  Cuba,  The  20,  315 

St.  Johan,  The  329 

!  St.  Nicholas,  The  206 

I  Stokes  V.  Came  173 

Stone  V.  Ketland  195 

1  Sullivan  r.  Morgan  301,  340,  366 

;  Sullivan  v.  Ingraham  143 

Sutherland  v.  Lishnaa  366 

'  Swainston  1!.  Garrick  215 

Swift  V.  Clark  58,  71,  276 

Sydney  Cove,  The  176,  314 


Taber  v.  U.  States 


60 


INDEX    TO    CASES    CITED. 


XXlll 


Tagrgard  v.  Loring  334 1 

Tapley  v.  ^Nlarlius  245 

Tale  V.  Meek  243 

Tartar,  The  162 

Taylor  v.  Curtis  108 

Taylor  v.  The  Cato  285 

Test.  The  309 

Thackeray  v.  The  Farmer  352 

Thames,  Tlie  200 

Thomas  JelTerson,  The  352 

Thomas  v.  Lane  26,  55,  85,  99,  337 
Thompson  v.  The  Nancy  359 

Thompson  v.  Rowcroft  331 

Thompson  v.  The  Philadelphia 

136,  141,  265 
Thompson  v,  Collins  144 

Thompson  v.  Busch  95 

Thompson  v.  Snow  76 

Thompson  v.  Faussat  55,69,  71,  275 
Thompson  v.  Havelock  29 

Thorn  v.  Hicks  172,  330,  202,  331 
Thorne  v.  White  85,  89,  309,  337 
Tiiion,  The  187 

Trainer  et  al.  v.  The  Superior  4,  352 
Trent,   and  Mersey  Navigation 

r.  Wood  198 

Treadwell  v.  Union  Ins.  Co.  230 
Tribune,  168,  334 

Trump  v.  Ship  Thomas  322 

Tucker  v.  Buffington  331 

Turner's  Case  5,  27,  85,  89 

Tunno  v.  Ship  Mary  176 

Two  Catharines,  The  69,  71,  267 
Two  Friends,  The  360 


U. 


United  States  v.  Ashton  24 

V.  Barker  41,127 

V.  Bladen  125 

r.  Cassedy        18,  127 

r.  CofTm  158 

r.  Furlong  120 

V.  Gardner  127 

V.  Haines     17,  18,  126 

V.  Hamilton  IS 

V.  Hcmmcr  124 

V.  Johns  120 

1-.  Kelly  122 

V.  Morrison  127 

t'.  Piuggles  158 

r.  Savage  125 

V.  Schooner  Sally  362 

I'.  Schooner  Betsey  362 


United  States  r.  Sharp  122,  124, 157 

V.  Smith  127,  220 

(Taber  v.)  60 

V.  Taylor  26,  83, 86,  89 

V.  Thompson     5,  124, 

125,  127 

V.  Tully  121 

V.  Wickham       85,  89 

r.  Winn  86 

V.  Wilder  217 


United  Ins.  Co.  v.  Scott  175,  226 


Van  Beuren  v.  Wilson 

272 

Vanguard,  The 

20, 

317 

Veacock  v.  M'Call 

47 

Vellhason  v.  Ormsby 

362 

Vernard  i'.  Hudson 

213 

Vibelia,  The 

185 

Vigilantia,  The 

7 

Virgin,  The 

176, 

318 

Volunteer  and  Cargo,  The 

243 

354 

Vrow  Judith,  The 

206 

Vrow  Mina,  The 

358 

w. 

Wainwright  v.  Crawford  173 

Wait?;.Gibbs  59,60,329 

Walton  z;.  The  Enterprise  112 

Walton  V.  The  Neptune    28,  69,  70, 

294 
Walter  ?;.  Brewer  168 

Walterstorff,  The  276 

Wardy.  i\mes  26,99,337 

Ward  V.  Green  168 

Washington,  The  (Mariners  v.)  103, 

305 
Watson  V.  Christie  85,  337,  333 

Watson  V.  Duykinck  241 

Watson  V.  The  Rose  279 

Watkinson  v.  Laughton  198,  223 
Webster  )'.  Seekamp  174 

Webb  V.  Duckingfieid  130,  140 

Weeks  i-.  The  Catharina  Maria  285 
Wellcndsen  v.  The  Forsokel  359 
Wells  V.  Osman  355 

Wendover  v.  Hogoboom  330 

VVetmore  v.  Hcnshaw  279 

Wickham  r.  Blight  47 

White  V.  Wilson  47 

Whiton  V.  The  Commerce  132 


\\1\ 


1M)KX    TO    CASKS    CITKD. 


Whcelor  I'.  Thompson  5,  H  JS 

W.i'l.ur-  r.  Till'  St.  UlolV  300,  359 
Wilh.ril  r.  Oorr  1,  IG,  47,  237,  251 
^V'llkillson  r.  Fra/ior  ^^i  T*^ 

Wilkins  I'.  Carmifliael  2  )3 

Wiloocks  V.  Palmer  340 

William  Money,  The  319 

William,  The  210 

Williams  r.  The  Hope  291 

AVilliams  r.  .^ulVollc  Ins.  Co.  282 
Williams  r.  Nichols  &  Perry  206 
Williams  r.  Millinuton  194,  242 

Wiihelm  Freilerick,  The  359 

Wilson  V.  The  Roy.  Exchg.  Ins. 

Co.  232 

Wilson  V.  ]\Iil]ar  vt  al.  230 

Wilson  r.  The  Belvidcre  100 

AVilson  V.  The  Mary  91 

Wilson  V.  Steamboat  Ohio        5,  362 


Winn  /■.  Coliimhian  Ins. 
Wood  /.  The  ISIimrod 
Woodrop  Sims,  The 
Wolf  II.  Smnmors 
Wolf  I'.  The  Oder 
Wysham  r.  Rossea 


Yates  V.  Brown 
Yates  V.  Railsioa 
Ysabel,  La 


Co.         187 

30,  41,  54 

200 

241 

272, 297 

204,  327 


195 
243 

178 


Zephyr,  The 
Zodiac,  The 


226 
162 


ERRATA. 

Page  GO,  note  3,  cites  a  decision  declaring  whaling  voyages  not  to  be  "  foreign 
voyages  "  :  add  a  reference  to  the  subsequent  statute,  giving  these  voyages  the 
privileges,  &.C.  of  "foreign  voyages,"  printed  in  the  Appendix,  p.  428. 

Page  64,  note  3,  from  "  Sautayra,  Sur  Code  de  Commerce  Explique,"  dele  "  Sur." 

Page  249,  note  3,  for  "  Portland  v.  Stubbs,"  read  "  Portland  Bank  v.  Stubbs." 


PART    FIRST. 


OF  THE  HIRING  OF  MERCHANT  SEAMEN. 


MERCHANT   SEAMEN. 


PART    FIRST. 
CHAPTER  I. 

OF  THE  DISTINCTIVE  PROFESSIONAL  AND  NATIONAL  CHAR- 
ACTER OF  MERCHANT  SEAMEN. 

The  true  definition  of  a  mamier,  within  the  contem- 
plation of  the  maritime  law,  does  not  perhaps  include 
all  persons  who  may  perform  labor,  or  render  ser^^ces  for 
hire,  on  board  the  vessel.  On  the  other  hand,  the  defi- 
nition of  a  saihr,  givcui  by  Valin,'  has  reference  to  the 
municijKil  regulations  of  the  French  Ordinance,  which 
re(|uircd  tin;  cnroMment  of  all  tlie  seamen  of  tiie  kingdom, 
and  divided  them  into  classes,  and  contemplated  a  certain 
degree  of  seamanship.  It  is  therefore  to  be  taken  in  a 
more  restricted  sense  than  the  general  meaning  of  the 
term  mariner,  or  seaman,  in  our  jiirispnuhMice.  But 
althou'di  our  iiHiiiiries  in  this  Treatise  will  not  he  limited 

O  1 

to  tile   rights   and  duties  of  those   who  arc  merely  cm- 

'  "  Un  matclot  est  un  homme  de  mcr,  qui  a  acquis  une  experience  suf- 
fisante  au  fait  de  la  manoeuvre  d'un  vaisscau."     Valin,  Tom.  i.  p.  509. 


4  rUOFF.SSlONAL  CllAKACTr.U. 

|)1ov(m1  in  tl).>  iiaviiiMtioii  of  tlic  vessel,  it  soenis  proper 
ti)  CD  npreheml  in  o'.ir  (lelinilioii  onlv  llu)se  w  ho  are  citlier 
einpli>\e(l  ill  (he  ;i(tii.il  sei\  ice  of  llie  iiavi^iatioii,  or  whose 
services  arc  iicccssais,  or  al  has!  coiitrihiitory  to  the 
preservation  of  ihe  vessel,  or  of  those  who  are  einj)loved 
in  naviiiatinu  her.'  I'ollow  ini;  this  dclinition,  we  sliall 
prohahK  l)e  \vd  lo  the  rii^hl  chissilication  ol"  tiie  persons 
^^llo  are,  or  are  not,  lor  the  purposes  of  sneh  a  treatise, 
\o  he  (leenied  mariners.  There  is  also  another  guide, 
coincident  with  the  nil(>  jnst  stated,  and  in  some  measure 
lonn(i{>d  ni)()n  it  :  namely,  the  elasses  of  persons  who 
liave  been  deemed  mariners  or  seamen,  by  tlie  Courts  of 
Admiralty,  to  the  intent  of  fonndini;  their  remedy  for 
their  wages  in  tjial  jurisdiction.  The  single  case  of  the 
master  does  not  seem  to  dejjart  from  the  general  rule 
aliove  given  ;  because  he  is  excluded  from  the  admiralty 
jurisdiction  in  rem,  as  to  his  wages,  for  reasons  pe- 
culiar to  his  office,  not  l)ecause  his  services  are  in 
part  of  a  differ(>nt  nature  from  those  of  the  common 
sailor ;  and  besides,  the  admiralty  courts,  in  this  country, 
entertain  his  suit  in  personam.^ 

The  follo\\ing  classes  of  persons  may  therefore  be 
enumerated  as  falling  \\  ithin  the  proper  scope  of  our  in- 
(iuiri("^.  The  first  consists  of  those  who  by  the  universal 
assent  of  the  maritime  \N()rld,  and  in  all  jurisprudence, 
are  ]>laced  under  the  general  defniition  of  mariners,  being 
concerned  in   the  actual  business  of  the  navigation;  as 

'  Trainer  et  al.  v.  The  Superior,  Gilpin's  R.  514.  — "  Nautam  accipere 
debemus,  cum  qui  navem  exercet,  quamvis  naula  appellantur  omnes,  qui 
navia  naviganila3  causa  in  nave  sint."  Ulpian,  (cited  in  the  notes  to 
Abbot  on  Shipping,  p.  91,  edit.  1829.) 

*  W'lllard  V.  Dorr,  3  Mason's  R.  91. 


PROFESSIONAL  CHARACTER.  6 

the  Master,  the  Mates,  the  Pilot,^  and  the  Seamen 
of  every  rank,  whether  they  are  common  sailors,  or  hold 
an  inferior  official  station,  as  that  of  Boatswain,  Coxswain, 
&c.  The  second  class  comprehends  persons  in  regard  to 
whose  maritime  character  difficulties  may  be  or  have 
been  felt :  \n\t  all  such  as  I  shall  enumerate  under  this 
head,  will  either  appropriately  fall  under  the  general  test 
of  services  contributory  to  the  preservation  of  the  vessel 
or  of  those  employed  in  navigating  her,  or  have  been 
specifically  treated  by  the  courts  as  belonging  to  the 
general  class  of  mariners.  They  are  the  Surgeon  ;^  the 
Purser;^  the  Cook  and  Steward;*  the  Cabin  Boy; 
the  Carpenter,^  who  frequently  acts  as  a  common  sailor; 
the  Cooper  on  Ixiard  whaling  or  other  fishing  vessels  f 
and  the  Engineers  and  Firemen  on  board  steam  vessels 
navigating  the  high  seas.' 

It  is  quite  obvious  that  there  may  be  a  third  class  of 
persons  performing  various  services  for  hire  on  board  a 
vessel,  in  regard  to  whose  contracts  considerable  difficul- 
ties would  arise  upon  the  question  of  whether  they  would 


'  By  pilots  are  here  meant,  both  the  pilot  as  an  officer  of  the  vessel,  and  the 
general  pilot  of  the  coast ;  each  of  whom  is  properly  a  mariner  ;  or  as  they 
are  called  by  Valin,  the  sea-pilot  and  the  coast-pilot ;  (Tom.  I.  p.  4S3.)  See 
also  The  Anne,  1  Mason's  R.  508;  Hohart  v.  Drogan,  10  Peters's  R.   ]()8. 

*  Mills  V.  Long,  Sayer,  136  ;  Shaw  v.  The  Lethe,  Bee's  Ad.  R.  424  ;  The 
Lord  llobarl,  2  Dodson's  Ad.  R.  100,  note. 

'   The  Prince  George,  3  Hag.  Adin.  R.  376. 

*  Black  V.  The  Louisiana,  Peters's  Adm.  Decis.  268  ;  Turner's  Case, 
Ware's  Adm.  Dccis.  S3. 

»  Wheeler  V.  Thompson,  I  Stra.  707;  The  Lord  llobarl,  2  Dodson's  Ad. 
R.  100. 

*  Macomhcr  et  al.  V.  Thompson,  1  Sumner's  R.  384  ;  U.  S.  v.  Thompson, 
ib.  168. 

'   Wtlson  V.  The  Stcamboal  Ohio,  Gilpin's  R.  505. 


G  NATIONAL  CHARACTER. 

come  within  tlic  adiuiraltv  jmisdiction ;  such  arc  all  ser- 
vants, of  (MtluM-  SIX,  hired  lor  the  acconnnodalion  and  to 
wait  on  the  persons  of  passengers,  or  to  perform  any 
ihit\  uoi  (h  lined  under  the  general  prineipU^  l)eforo 
stated.  AVheiher  or  not  tlieir  contracts  would  probably 
bo  cosnizabli>  in  the  admiralty,  w  ill  be  for  future  con- 
sideration. At  ])resent,  it  is  merely  necessary  to  remark, 
that  they  have  not  usually  been  included  under  the  gen- 
eral descrii)tion  of  mariners. 

It  may  here  be  remarked,  that  the  general  principles 
of  the  mariner's  contract,  rights  and  duties,  as  they  will 
be  hereafter  discussed  without  specific  exceptions  or  ap- 
plications, comprehend  most  of  the  first  two  classes  of 
j)ersons  above  enumerated.  It  will  also  be  a  part  of  my 
desii::n  to  develop  and  define  particular  rights  and  duties, 
and  to  i)oint  out  the.  limitations  and  exceptions  to  the 
general  })rinei|)les. 

These  general  difinitions  seem  to  be  all  that  it  is  ne- 
cessary to  premise,  concerning  the  professional  character 
of  mariners.  The  remaining  topic  of  this  chapter,  the 
national  character  of  seamen,  w  ill  occupy  us  with  a  brief 
smnmary  of  existing  statute  regulations,  after  a  single 
preliminary  remark. 

The  })olicy  of  different  maritime  nations,  in  regard  to 
the  manning  of  their  public  and  jjrivate  marine,  has  va- 
ried at  different  times  and  under  different  relations  with 
the  rest  of  the  world.'  But  it  is  altogether  a  matter  of 
national  policy,  in  time  of  peace.  There  is  no  principle 
of  the  L'^entTal  maritime  law,  and  no  custom  of  the  com- 

'  In  France,  it  was  for  a  long  period,  and  I  believe  still  is,  the  policy  of 
the  government  lo  induce  foreigners  to  enter  both  the  King's  and  the  nier- 
chant  service.     See  Valin,  Tom.  i.  p.  558. 


NATIONAL  CHARACTER. 


mercial  nations,  which  excludes  mariners  from  employ- 
ment in  any  other  than  a  ship  of  their  own  country.  The 
seaman,  })rofessionally,  and  for  the  purposes  of  his  em- 
ployment, is  a  citizen  of  the  globe  ;  his  contract  is  known 
to  a  general  jurisprudence,  and  is  governed  by  principles 
in  respect  to  which  greater  uniformity  has  prevailed  for 
many  ages,  than  in  respect  to  almost  any  other  contract 
of  civilized  man.  He  seeks  his  employment,  and  ac- 
quires a  full  title  to  its  rewards,  in  the  vessels  of  any  na- 
tion, except  where  the  policy  of  his  own  sovereign,  or 
that  of  the  particular  country,  forbid  or  exclude  him  from 
the  ships  of  such  country.^ 

By  a  statute  of  the  United  States,  passed  in  1813,  it 
was  declared  to  be  unla^\'ful  to  emjiloy  on  board  any  of 
the  public  or  private  vessels  of  the  United  States,  any 
person  or  persons,  except  citizens  of  the  United  States, 
or  persons  of  color,  natives  of  the  United  States;  and 
naturalized  citizens :  and  where  the  latter  are  employed, 
they  must  produce  to  the  commander  of  the  public  vessel. 


'  These  observations  apply  only  to  a  state  of  peace.  As  against  bel- 
ligerent rights,  it  may  often  be  important  for  the  masters  and  owners  of 
neutral  ships,  to  attend  carefully  to  the  national  character  of  the  seamea 
whom  they  employ.  The  law  of  prize,  held  by  some  nations,  requires 
that  the  odicers,  and  a  certain  proportion  of  the  crew  of  neutral  ships, 
generally  two-thirds,  should  not  be  of  an  enemy's  country;  otherwise  the 
ship  will  take  its  national  character  from  that  of  the  crew.  This  is  the 
law  of  France  and  Denmark.  The  proportion  agreed  on  by  Russia  and 
England,  by  the  Petersburg  Convention  of  1801,  is  a  half.  (See  Jacobsen's 
Sea  Laws,  Book  II.  chap.  2.  2  Brown's  Civ.  and  Adm.  Law,  515.)  Eng- 
land has  not  always  been  so  strenuous  upon  this  point ;  but  the  courts  of 
that  country  have  held,  tliat  where  neutral  seamen  enter  into  the  enemy's 
commerce,  liieir  national  character  is  concluded  by  that  of  the  vessel  in 
•which  they  are  found.  The  Frederick,  5  Robinson's  Adm.  R.  8.  See  also, 
The  Einbdcn,  1  Robinbon's  Adm.  R.  16,  and  The  Vtgilantia,  tbid.  1. 


8  ISATIONAL   CIIAr.  \CTF,U. 

it'  it  \)c  one.  or  lo  a  collcclor  of  tlu*  customs,  if  it  be  a  pri- 
vate \(^s(|,  ;i  ((rtilicd  (•c)j)v  of  the  act  of  their  luttiualiza- 
tioii,  Miiiiii:;  forth  such  natmali/ation,  and  tlie  time 
tiuMtof.'  I)iit  this  |)rohil)itioii  is  limited,  in  a  subsequent 
section  of  the  same  act,  to  tlie  exclusion  of  the  subjects 
or  eiti/.eiis  of  such  nations  only,  as  have  prohibited  by 
treaty  or  special  convention,  the  citizens  and  subjects  of 
the  United  Stat<s  from  cmi)loyment  in  their  vessels.'^ 

The  j)enaltv  provided  in  tlie  Act  for  the  employment 
of  the  subjects  or  citizens  of  the  nations  against  whom 
the  ])roliil)iti()n  operates,  is  a  forfeiture  by  the  master  and 
owners  of  ^w  himdred  dollars  for  each  seaman  so  unlaw- 
fully employed  ;  to  be  recovered  in  an  action  of  debt,  one 
moiety  to  the  use  of  the  person  suing,  and  the  other  moiety 
to  the  use  of  the  United  States.  And  this  penalty  is 
recoverable,  although  the  seaman's  name  shall  have  been 
admitted  and  entered  in  the  list  of  the  crew  certified  by 
the  collector.^  But  when  in  a  foreign  port,  any  defi- 
ciency of  th(;  crew  may  be  sup})lied  by  hiring  the  sub- 
jects of  the  foreign  country,  if  their  employment  is  not 
])rohibited  by  their  own  laws."* 

But  tile  whole  of  this  statute  is  now  comparatively  in- 
operative, since  there  are  very  few  nations  who  have 
excluded  our  seamen  from  employment  in  their  ships. 
Foreigners  are  extensively  employed  in  our  mercantile 
marine,  and  while  so  employed,  are  within  the  protection 


'  Act  U.  S.  3  March,  1S13,  ch.  184,  sec.  1,2. 

»  Sec.  10. 

'  Sec.  8.  A  similar  penalty^  is  provided  against  receiving  on  board  in  a 
foreign  port,  any  searnan  or  seafaring  man,  not  of  the  United  States,  as  a 
passenger,  without  permissioa  in  writing  from  the  proper  officers  of  his 
country.     (Sec.  5.)  *  Sec.  9. 


NATIONAL   CHARACTER.  9 

of  the  laws  made  for  the  benefit  and  protection  of  sea- 
men. It  has  been  held  expressly,  that  a  foreigner,  while 
employed  as  a  seaman  in  a  merchant  ship  of  the  United 
States,-is  a  "  mariner  and  seaman  of  the  United^States," 
within  the  language  and  policy  of  the  Consular  Act  of 
1803,  ch.  62.' 

By  a  subsequent  statute,  in  all  vessels  of  the  United 
States  engaged  in  the  fisheries  and  coasting  trade,  the 
officers  and  three-fourths  of  the  crew^  must  be  citizens ; 
and  in  all  vessels  engaged  in  foreign  trade,  the  officers 
and  two-thirds  of  the  crew  must  be  citizens.^  Fishing 
vessels  offending  against  the  Act,  cannot  entitle  them- 
selves to  the  bounties  provided  by  law^ ;  and  vessels  en- 
gaged in  the  foreign  and  coasting  trade,  are  subject  to 
the  foreign  tonnage  duty,  if  their  crews  consist  of  more 
than  the  above  proportion  of  foreigners.^  These  last 
penalties  are  cumulatiAc  upon  those  of  the  former  Act ; 
so  that  masters  and  owners,  ship})ing  foreign  seamen  who 
belong  to  countries  against  which  that  Act  operates,  are 
still  subject  to  the  penalty  of  five  hundred  dolhus  for  each 
person. 

I  am  not  aware  of  any  decisions  in  the  courts  of  this 
country,  respecting  tlie  provisions  of  these  Acts.  But  in 
Enghuid,  under  similar  statutes,  it  has  been  held,  that 
foreigners,  hired  to  take  care  of  a  cargo  of  mules,  on  board 
a  British  ship,  were  not  lo  he  deemed  ])art  of  the  crew, 
within  the  |)rovisions  of  the  statutes  re(juiring  Jjritish 
ships  to  be  manned  by  a  certain  proportion  of  British 
seamen  ;^  and  also  that  goods  imported  in  a  British  ship 

'  Mallhrics  v.  OJJl'i/,  3  Sumner's  R.  115. 

*  Act  U.  S.  1  Marcli,  1817,  ch.  204,  sec.  3,  5,  G.  '  Ibid. 

*  The  George  (he  Third,  1  Dodson's  Adm.  R.  320. 

2 


10  NATIOiNAL   C  llAHAC TKU. 

not  ukmukmI  iiiul  ii;i\  i^aicd  accordiiiij;  to  law,  arc  not  lia- 
ble lo  lortcimrc,  it  ilic  iiiiprircd  mannini;' of  tlic  ship  was 
a  niatttT  ol  nnronlrollaMc  ntccssitv/  JSticli  statutes,  in 
fact,  hi'loni:  to  a  cl.i^s  of  laws,  which,  ahhouf^h  not  to  be 
^^(^ll^t'^(•(l  li\  inimitc  tenderness  to  |)arti('nhn'  hardslii|)S, 
are  ^et  snl)je(t  to  all  considerations  of  rational  ecjuity ; 
althouiih  iVanied  for  the  security  of  great  national  inter- 
ests, and  founded  on  |)inposcs  of  great  public  policy,  they 
are  vet  not  to  be  rigidly  and  literally  enforced  against 
olTciuH^s  connnitted  onlv  through  invincible  necessity.^ 

'   The  Pelican,  2  Dodson's  Adm.  R.  194. 

*  Adm.  Digest,  Titles  "  Accident,"  "  Necessity  aud  Distress." 


CHAPTER  II. 

OF  THE  GENERAL  NATURE  OF  THE  MARINER's  CONTRACT, 
AND  THE  PARTIES  THERETO. 

The  contract  of  hire  for  marine  service  belongs  in  gene- 
ral to  the  entire  class  of  contracts  for  the  hire  of  services, 
hut  it  also  involves  and  is  governed  by  principles  pe- 
culiar to  itself,  and  which  carry  it,  in  very  important  par- 
ticulars, beyond  the  rules  applicable  merely  to  contracts 
of  service  upon  land.  Thus,  by  the  common  law,  of 
England  and  of  this  country,  when  a  man  lets  himself  to 
hire,  and  neglects  or  refuses  to  fulfil  his  engagement,  he 
cannot  be  compelled  to  perform  it  by  any  restraint  put 
upon  the  freedom  of  his  person  ;  the  remedy  of  the  other 
party  is  solely  in  the  damages  he  may  recover  for  breach 
of  the  contract.  The  same  principle  prevails  in  the  civil 
law  ;  nemo  potest  prcecise  cogi  ad  factum ;  and  the  same 
remedy  only  is  afforded  to  the  injured  party. ^  But,  by  the 
law  of  most  countries,  the  mariner's  contract  is  an  exception 
to  this  general  j^rinciple.  By  the  French  Ordinance,  the 
seaman,  who  fails  to  render  himself  on  board  according 
to  his  contract,  can  be  j)ursued  and  aiTested  wherever  he 
is  found,  and  constrained  to  complete  his  engagement.^ 
The  same  provision  for  his  apprehension  and  com])ul- 

'  PoTJiiKK,  TraiU  (ks  Obligations,  n.  157  (Edilion  Dupin,  tome  i,  p.  79.) 
*  VOrd.  de  la  Marine,  liv.  2,  tit.  7,  art.  3. 


12  NATIRK  OK  THK  CONTRACT. 

sion,  is  m;ult'  In  I'liuhind'  and  in  tliis  conntry.^  There 
is  ;i1m>  aiKillicr  |i(tiiliaiit v  of  ihis  coiitract,  in  wliich  it 
dilVcrs  iVom  other  coiitracts  lor  the  hire  of  scMviccs.  It  is 
the  oiih  lorm  ol'  sri\  ice  stipulated  to  he  reiuh'red  by  a 
rn-eman  of  full  aiic,  knouii  to  the  eominon  law,  in  wliieli 
the  tiiiploNcr,  h\  his  own  act,  ean  directly  inflict  a  |)nn- 
islnncni  on  the  cmijloved,  for  neglect  of  duty  or  breach 
of  ohiiuation.  Bv  tlu'  i)ositive  law  of  some  countries, 
also,  and  |)erha|)s  hy  the  ijjeneral  law  of  the  sea,  the  sea- 
men an-  hoiMul  to  assist,  at  the  risk  of  their  lives,  in  de- 
fendinir  the  ship  against  |)iratcs  ;  and  a  refusal  to  fight  is 
punished  criminally.  Such  is  the  law  of  France'  and  of 
Enj^land.''  All  these  peculiarities  of  the  contract  are 
founded  in  deej)  reasons  of  policy  and  necessity  ;  and 
although  they  do  not  give  a  character  to  this  service 
^^  hich  takes  it  out  of  the  general  rules  and  principles  ap- 
|)li(al)le  to  the  ^^ hole  class  of  contracts  for  the  hire  of 
services,  they  are  important  to  be  stated  at  the  outset,  as 
the  |)rominent  features  of  distinction  ;  reminding  us  that 
those  general  rules  and  j)rinciples  will  sometimes  fall  far 
short  of  satisfying  the  exigencies  of  a  contract  so  strongly 
marked  by  principles  of  its  own. 

In  other  respects,  the  mariner's  contract  is,  as  remarked 


^  Act  of  2  Geo.  2,  ch.  36,  sec.  3  and  4,  and  31  Geo.  3,  ch.  39,  sec.  3  ;  noAV 
consolidated  by  5  and  6  Wm.  4,  c.  19. 

*  Act  U.  S.  20ili  July,  1790,  sec.  7.  The  authority  given  by  this  Act  to 
arrest  deserters  by  a  warrant  from  a  magistrate,  does  not  supersede  the  au- 
thority wliicli  liie  master  has  under  the  general  maritime  law,  to  re-take  a 
deserting  seaman,  and  confine  him  on  board  the  vessel.  Turner's  Case, 
Ware's  R.  83. 

»  L'Ordon.  de  la  3Iarine,  liv.  2,  tit.  7,  art.  9. 

*  IG  Car.  2,  ch.  6,  and  22  and  23  Car.  2,  ch.  11 ;  11  and  12  W.  3,  ch.  7, 
S.9. 


PARTIES  TO  THE   CONTRACT.  13 

bj  Pothier,  in  speaking  of  the  hire  of  seamen  by  the 
month,  or  by  the  voyage,  a  true  contract  for  the  hire  of 
services :  and  it  is  so  regarded,  both  in  this  country  and 
in  England,  \\  hethcr  the  hire  be  by  the  month,  or  by  the 
voyage,  or  on  a  share  of  the  profits  or  the  freight.'  It 
has  been  well  settled  by  the  courts  of  common  law  and 
of  Admiralty,  that  even  in  regard  to  that  form  of  the 
contract,  which,  in  modern  times,  seems  to  approach 
nearest  to  the  principles  of  the  contract  of  partnership  — 
the  fishing  contracts,  under  ^^  liich  the  seamen  receive  a 
proportion  of  the  proceeds  for  their  services — the  mari- 
ners are  not  partners  with  the  owners,  but  the  share  of 
each,  when  ascertained,  is  not  only  in  lieu  of  wages,  but 
is  to  be  treated  in  all  respects  as  stipulated  wages  are 
treated.^  I  shall  have  occasion  to  revert  to  the  various 
forms  of  the  contract  hereafter. 

We  now  pass  to  the  consideration  of  the  parties  be- 
tween whom  the  mariner's  contract  takes  place,  and  cer- 
tain of  the  general  stipulations  an  liich  it  involves  on  the 
part  of  each  of  them.     The  parties  to  this  contract  are 

'  Most  of  the  Continental  jurists  consider  the  contract  on  freight  or  pro- 
fits, a  kind  of  partnership.  Poihier  enumerates  four  different  forms,  or 
kinds,  of  the  mariner's  contract,  (as  do  Valin  and  Jacobscn  ;)  an  voiju^e  ; 
au  mnis  ;  an  profit,  ou  a  la  part  ;  au  fret  ;  the  two  first,  being  on  a  stipu- 
lated sum,  he  calls  un  conlrat  de  louage  ;  the  two  last,  contrary  to  our 
rule,  he  calls,  des  espkccs  de  contrats  de  sociili.  Potiiter,  Traili  de  Louages 
Maritimex,  n.  160,  161.  Edition  Dupin,  tome  iv,  p.  399.  See  also,  "Valin, 
tome  i,  p.  676.  Jacobsen's  Sea  Laws,  book  2,  ch.  2.  Lord  Tcntcrden 
seems  to  have  taken  the  satne  view  of  the  contract  on  profits.  Sec  Abbot 
on  Shipping,  part  4,  ch.  1,  p.  432.     Amer.  Edit.  1829. 

*  The  Frrdcrick,  5  Hob.  A(hn.  ii.  S.  'I'/ie  Crusader,  Ware's  R.  437. 
Wilkinson  V.  Frazicr,  4  Esp.  R.  182,  Matr  v.  Glcnnie,  4  M.  and  Selw.  240. 
Day  V.  lioswdl,  1  Camp.  R.  329.  Rice  V.  Austin,  17  Mass.  R.  197.  Bax- 
ter V.  Rodman,  3  Tick.  R.  435. 


14  TARTIES  TO    llli:   CONTRACT  — Till;   .MARINER. 

three;  tlir  mariner,  llie  master  and  the  ()\n  ner  :  the  first 
beiui;  strietK  a  separate  |)art\  m  mtorosl,  or  —  as  the 
phrase  ol  ihe  eommoii  law,  discrim'mat'nc  of  tlie  various 
interests  in  a  coiilraet,  expresses  it  —  beinj;  oj  the  one  part ; 
and  ihe  I  wo  lasi,  thouiih  in  some  resj)ects  of  diverse 
rii:;lits  and  ohhi;ations,  heinii' severally — althonii;h  in  otlier 
and  most  respects  identified  —  of  the  other  part,  with  re- 
ference to  ilic  first. 

And  first  ol"  the  Mariner,  or  !Seaman. 

1.  In  general,  the  same  k^gal  quahfications  which  ena- 
ble any  party  to  enter  into  a  binding  obligation,  em})Ower 
and  (jualify  him  to  enter  into  the  mariner's  contract :  and 
the  same  dis(jualifications  prevent  him.^  A  married  wo- 
man is  of  eomsc  excluded,  under  the  same  circumstances 
A\  hicii  exclude  from  any  otlier  contract ;  though  it  has  been 
held,  by  very  high  authority,  that  being  of  the  female  sex 
is  not  of  itself  any  disqualification  of  earning  wages  as  a 
mariner.^  IMinors  and  apprentices,  also,  are  not,  of  them- 
selves alone,  capable  of  entering  into  this  contract,  any 
more  than  into  other  contracts  of  service,  except  with 
the  same  limitations  and  restrictions.  They  cannot  en- 
title themselves  to  their  own  wages,  when  they  are  un- 
der the  power  or  guardianship  of  another :  so  that  any 
advance,  or  any  other  portion  of  their  wages,  paid  to 
them  without  the  assent  of  the  parent,  guardian  or  mas- 
ter, maybe  required  to  be  paid  again  to  the  latter;^  and 
the  takiiii:  a  minor  child  on  a  voyage  upon  the  high  seas, 
by  a  tortious  abduction  or  seduction,  that  is,  by  induce- 
ments, wholly  without  the  knowledge  or  against  the  con- 

'  See  Chitty  on  Contracts  ;  Pothier  on  Obligations. 

•  The  Jane  and  Matilda,  1  Hag.  Adm.  R.  187. 

*  James  v.  Le  Roy,  6  Johns.  R.  274,  and  note. 


PARTIES   TO   THE   CONTRACT  —  THE   MASTER.  15 

sent  of  the  parent,  is  ground  for  an  action  of  damages  by 
the  parent.^  Nor  is  it  always  competent  for  a  master  to 
send  his  indented  apprentice  on  a  voyage  to  sea,  and  to 
receive  the  wages  he  may  earn ;  as  this  may  be  repug- 
nant to  the  terms  and  objects  of  the  contract  of  appren- 
ticeship;  and  any  custom  or  usage  so  to  do  —  as  in  the 
cooper's  trade,  to  send  apprentices  on  fishing  voyages,  on 
which  coopers  are  usually  taken — will  not,  it  has  been 
held,  authorize  the  master  to  assume  a  power  which  he 
has  not,  without  the  custom.^  But  where  the  entering 
into  the  mariner's  contract  is  not  repugnant  to  the  terms 
and  objects  of  the  contract  of  apprenticeship,  the  appren- 
tice may  enter  into  it  with  the  master's  assent. 

2.  The  Master.  —  The  master  being  the  person  to  whom 
the  ow  ners  have  entrusted  the  navigation  of  the  ship,  and 
some  other  powers  in  relation  to  it,  he  has  power  to  make 
certain  contracts,  which  it  is  not  material  here  to  enu- 
merate, but  among  which  is  included  that  of  hiring  the 
other  mariners.  He  has  been  clothed  with  this  power, 
under  restrictions  varying  little  from  age  to  age,  since  the 
earliest  periods  of  commerce.  In  the  Guidon  de  la  Mer, 
the  Consolato,  and  the  Laics  of  the  Hanse  Towns,  his  au- 
thority for  this  purj)ose  is  fully  recognised  :  ^  the  more 
modern  maritime  codes  have  followed  the  ancient  ones, 
in  this  respect ;  ^  and  the  statute  law  of  this  country  and 

'  This  action  may  be  maintained  in  the  Admiralty.  Plummer  v.  Wehb, 
4  Mason's  R.  380.  S.  C.  Ware's  R.  75,  The  action  will  lie  against 
the  ship-owner.     Sherwood  v.  Hall,  3  Sumner's  R.  127. 

»  Randall  v.  Rotch,  12  Pick.  R.  107. 

'  Guidon  de  la  Mer,  chap.  15,  art.  2.  Consolato  del  Mare,  chap.  79,  [124.] 
Laws  of  the  Ilanse  Towns,  tit.  ?>,  art.  2. 

*  L'Ordon.dc  la  Marine,  liv.  2,  tit.  1,  art.  5;  and  the  authorities  cited 
by  Valm,  tonic  i,  p.  385. 


16  I'ARTFF.S  TO  THE  CONTRACT  — THE  MASTER. 

ot  (iriMt  l>nt.rm.  ncoiiiiiscs  niid  ii'ncs  viXvvi  to  this  nu- 
thoritN.in  the  prox  isioiis  rcs|)("(tinii  the  sliij)|)iii^- articlrs.^ 
Tlio  rrcncli  OrdiiiiiiuM^  rccniircd  that  the  master  should 
hire  his  cirw  in  coiiccrt  \\ith  the  owners,  when  at  the 
phiee  ot"  the  owners'  residciiee  ;^  J"i<l  (rom  the  commen- 
tari(\s  of  \  alin  aiitl  P(>thier  »ij)on  this  provision,  it  is  to 
Im>  inrcncd  (hat  an  eni!;aii;einent  ola  seaman  by  the  mas- 
ter against  the  will,  or  without  the  knowledge,  of  the 
OA\  ner.  if  he  is  at  the  place,  was  held  by  them  to  be  in- 
valid as  respects  the  owner.^  Yalin  further  observes, 
that  if  tlie  e((uii)ment  is  made  away  from  the  owner's 
residence,  and  lie  has  no  agent  or  correspondent  at  the 
place,  the  power  of  the  master  in  hiring  the  crew  is  ab- 
sohite  ;  but  if  the  owner  has  an  agent  or  correspondent 
at  the  place,  the  master  should  hire  them  in  concert  with 
such  agent  or  correspondent/  These  provisions  corres- 
pond w'nU  thos(^  of  some  of  the  older  codes.  I  am  not 
aware  that  effect  has  been  given  to  similar  rules  in  our 
law ;  but  u])on  ])rinci])le,  the  master  could  not,  if  the 
party  had  notice  of  the  fact,  bind  his  owner  to  pay  the 
wages  of  a  [)articular  seaman,  whom  the  owner  had  for- 
bidden him  to  employ  ;  or  to  pay  a  price  of  wages  which 
he  had  refused  to  give  ;  whether  his  will  were  signified 
to  the  master  directly,  or  through  another  agent.  In 
general,  however,  the  master  is  left  to  hire  the  seamen, 
at  his  ow  n  discretion,  both  at  home  and  abroad  ;  and  un- 

'  2  Geo.  2,  ch.  36,  s.  1  and  2;  31  Geo.  3,  ch.  39,  s.  1  nnd  2  :  now  con- 
solidated by  5  and  6  Wm,  4,  ch.  19.  Act  U.  S.  20th  July,  1790,  ch.  56, 
sec.  1. 

*  L'Ordon.  de  la  Marine,  liv.  2,  tit.  1,  art.  5. 

'  Valin,  tome  i,  p.  385.  Pothier,  Louages  Marilimes,  n.  164,  Edition 
Dupin,  tome  iv,  p.  401. 

*  Ibid. 


PARTIES   TO   THE   CONTRACT  — THE   MASTER.  17 

less  the  owner  interferes,  the  engagements  entered  into 
by  the  master,  aa  ithin  the  scope  of  his  agency,  bind  the 
owner  to  a  performance.' 

The  master  thus  becomes  a  party  to  the  mariner's  con- 
tract. Of  the  manner  and  extent  in  which  he  obhgates 
both  himself  and  his  owner,  I  shall  have  occasion  to  treat 
hereafter,  under  the  remedy  of  seamen  for  their  wages. 
It  is  to  be  observed,  however,  that  the  master  is  not  al- 
ways a  necessary  party  to  the  making  of  the  mariner's 
contract,  and  that  his  intervention  at  all,  at  that  stage, 
may  be  dispensed  ^^  ith.  The  contract  is  not  with  the 
person  of  the  master  only,  but  with  the  ship,  or  rather 
with  the  owner."  The  seamen  may  be  shipped  by  the 
owner,  before  the  master  is  ai)i)oint(^d  ;  if  they  sign  the 
written  evidence  of  the  contract,  called  the  shij)ping 
paper,  or  shi])ping  articles,  with  a  blank  left  for  the  name 
of  the  master,  it  is  to  be  understood  that  they  engage  to 
go  the  voyage  with  any  master  whom  the  owner  may  ap- 
})oint.  When  the  master  who  may  afterwards  be  ap- 
pointed, signs  the  contract,  he  and  the  crew  come  into 
the  same  mutual  relations  and  obligations,  as  if  he  had 
originally  hired  them  himself.^  So  too,  where  the  mas- 
ter, who  may  have  hired  the  crew  and  signed  articles 
^\ith  them,  dies,  or  is  removed  by  the  owners,  before  the 
connnencement  or  during  the  continuance  of  the  voyage, 
the  seamen  having  stijiuhited  to  go  on  a  defniite  voyage, 
are  lx)und  to  com])lete  it  under  the  substituted  master.* 

'  Story's  Com.  on  Agency,  p.  109,  110,  111,  sec.  119,  120,  121. 

*  Potliier,   Louagc.s  Marilimcs,   n.  176,  Edit.  Dupin,  tome  iv,  p.  405. 
United  Stairs  v.  Ilaincs  ct  al.,  5  Mason's  R.  272. 

'  Ma  I/O  V.  Harding,  6  Mass.  R.  300. 

*  Polhier,  ut  supra  ;  Valin,  tome  i,  p.  532.     Dray  v.    The  Atalanla,  Bee's 


ir>  l'ARTIi:S  TO  'I'lir.   CONTRACT  — THF.   OWNER. 

So  too.  ilic  ninstcr  |)ossossrs  tlu>  antlioritv  at  a  foivign 
jK)it,  if  he  hfcoincs  (lisal)K'(l  li\  illiu'ss,  to  apjioiiit  a  new 
master:  ami  the  pow  cr  ol"  such  new  master  in  liirin^  sea- 
men, and  his  relation  to  those  already  on  })oard,  are  the 
same  as  those  of  his  |)redeeessor.'  The  mariners  are 
boniul  to  perloiin  the  voyajje  nnder  any  person  who  is 
thii>  hiwliilh  siihstiiiiled  master  for  the  voyage,  unless  he 
is  grossly  inconipeleiit  to  th(>  duties  of  his  station,  from 
want  of  due  skill,  or  from  grossly  bad  habits,  or  from 
j)rolliiiate  and  eruel  l)ehavior.~ 

3.  The  Owner.  —  The  remaining  party  to  the  mari- 
ner's contract  is  the  owner  of  the  vessel.  He  rarely  be- 
comes such,  however,  by  a  direct  interference  in  making 
the  contract ;  but  he  enters  into  the  relation,  and  be- 
comes affected  by  its  consequences,  through  his  agent, 
the  master.''  So  too,  he  rarely  signs  the  written  evi- 
dence of  the  contract  ;  but  this,  like  the  substance  of  the 
agreement,  becomes  the  law  of  the  parties,  through  the 
same  agency.  But  the  owner  possesses  the  same  gene- 
ral ])owers  of  revocation,  either  entire  or  ])artial,  which 
belong  to  the  relation  of  principal  and  agent,  under  all 
circumstances.''     He  also  possesses  a  concurrent  authority 


Adm.  R.  48.    United  States  v.  Hamilton,  1  Mason's  R.  443.    Murray  v.  Kellog, 
9  Jolins.  R.  227.     The  position  stated  in  the  text,  is  equally  true,  whether 
the  articles  contain  the  words,  "and  whoever  else  shall  be  master  for  the 
'     voyage,"  or  not.     United  Slates  v.  Haines  ct  ah,  ut  supra. 

'  Story  on  Agency,  sec.  120.  Pothior  and  Valin,  also,  moot  the  question  of 
whether  the  seaman,  who  has  engaged  to  goon  a  definite  voyage, is  obliged 
to  go  in  another  ship,  sub?tiiuted  for  that  in  contemplation  at  the  time  of 
making  the  contract ;  and  both  decide  it  in  the  aflirmative.  Ubi  supra, 
notes  1,  3. 

*  United  Stales  V.  Casscdy  et  al.,  2  Sumner's  R.  582, 

»  Story  on  Agency,  sec.  120.  *•  Ibid  485,  et  seq. 


CONTRACT— GEjN ERA L  OBLIGATIONS.  19 

■with  the  master,  to  make  new  relations  under  the  con- 
tract ;  as  where  a  seaman  has  forfeited  his  right  to  wages 
by  misconduct,  the  owner  may  absolve  from  such  forfeit- 
ure, and  the  seaman  be  restored  to  his  rights,  to  the  same 
effect  as  by  the  master.'  The  power  of  the  master  to 
bind  tlie  owners  to  the  mariner's  conti-act ;  the  question 
who  are  to  be  deemed  owners  with  reference  to  it ;  and 
the  extent  and  nature  of  their  liability,  fall  appropriately 
under  the  subject  of  remedy. 

There  remain,  to  be  considered  in  this  chapter,  certain 
of  the  general  obligations  of  the  parties  to  the  mariner's 
contract,  which  mayor  may  not  be  included  in  their  writ- 
ten agreement ;  and  those  of  the  master  and  owners  to- 
wards the  seamen,  come  naturally  first  in  order. 

Although  the  articles  are  wholly  silent  upon  such  points, 
law  and  reason  will  imply  certain  engagements  on  the 
part  of  the  master  and  owners,  to  the  mariners,  which  are 
equally  as  imp(Mative  as  those  expressed  in  writing. 

1 .  The  first  obli2;ation  on  the  part  of  the  owner  and 
master  is,  to  pay  the  wages  agreed  u}ion.^  This  duty  is 
of  course  subject  to  the  exception  of  all  leiiai  defences 
to  the  claim.  The  terms  of  hiring  are  generally  ex- 
pressed in  the  written  contract,  and  constitute  one  of  the 
chief  stijjuhitions  contained  in  the  paper. 

2.  Anotlicr  iin])rK'd  engagement  on  the  part  of  the 
owner  and  master  is,  that  tlie  voyage  shall  he  Ic^ial,  as 
regards  foreiji;!!  or  their  own  governments.^  It  lias  hcen 
fre(juently  held,  that  the  wages  of  seamen  are  not  a  lien 
on   th(;  vessel,  on   an   iMegal  voyage  :    so  that  Avhen  the 

'  Dixon  V.  The  Cyrus,  Peters's  Adm.  R.  407. 

*  Polhier,  Loua^is  ATantimrs,  n.  178. 

'  Dtxvn  V.  The  Cyrus,  Telers's  Adm.  R.  407. 


20  COr^rUACT  —  SEAWORTIIINKSS. 

vessel  is  sti/.cd  l)\  ilic  douK^stic  or  forcii!;!!  government, 
and  condennied  lor  a  Ureacli  of  law,  waiz;es  are  not  al- 
low t  (I  i(»  I  he  niarniers  ont  of  tlie  proceeds,  unless  it  clearly 
aj)j)ears  that  tliev  were  innocent  of  all  knowledge  of,  or 
participation  in,  the  illegalit\()l  the  voyage.*  \Vher(>  this 
appears,  if  the  seamen  should  neglect  to  enforce  their  claim 
against  the  proceeds,  they  could  still  assert  a  claim  for 
damages  against  the  owner  or  master;  for  the  latter  must 
be  esto|)ped  iVom  s(>tting  up  the  illegality  of  the  voyage 
into  which  tlie\  had  drawn  the  seamen,  without  com- 
municating to  them  its  real  objects  and  character.^ 

3.  It  is  also  implied  in  the  contract  of  the  owner  and 
master  with  the  seamen,  that  at  the  commencement  of 
the  voyage,  the  ship  shall  be  furnished  with  all  the  neces- 
sary and  customary  requisites  for  navigation,  or,  as  the 
term  is,  shall  b(;  seaworthy?  It  may  not  be  either  ne- 
cessary or  proper,  that  the  master,  when  he  hires  the 
seamen,  should  be  obliged  to  exhibit  to  them  a  list  of  his 
stores  and  e(pii])ments,  or  to  take  their  opinion  on  the 
sufficiency  of  his  vessel.     But  he  and  the  owner  take  the 


'  The  St.  Jago  dc  Cuba,  9  Wlicaton's  R.  409.  The  Langdon  Cheeves,  2 
Mason's  R.  58.  The  Vanguard,  6  Robinson's  Adm.  R.  207.  The  Benja- 
min Franklin,  ibid.  350.  The  Leander,  Edwards's  Adm.  R.  35.  Shepherd 
et  al.  V.  Taylor  et  al.,  5  Peters's  Sup.  C.  R.  675. 

*  A  suit  for  damages  has  been  maintained  in  the  Admiralty,  in  Massa- 
chusetts District,  for  a  fraudulent  shipment  of  a  seaman  on  a  fictitious 
voyage,  the  court  considering  the  defendant  estopped  to  deny  the  reality  of 
the  voyage.  SlcwarCs  Case.  (See  Dunlap's  Adm.  Practice,  p.  53.)  So 
too,  damages  are  recoverable  for  the  breaking  up  of  a  voyage,  by  the  owner. 
Abbot  on  Shipping,  part  4,  ch.  4.  See  also  Roccus,  note  43;  Malyne 
Lex  Merc,  p.  105;  Jacobsen's  Sea  Laws,  457;  3  Johns.  R.  518;  3  Car. 
and  Pa.  3;  Peters's  Adm.  R.  p.  192,  n. ;  M' Quirk  et  al.  v.  The  Penelope,  2 
Peters's  Adm.  R.  270. 

'  Dixon  v.  The  Cyrus,  Peters's  Adm.  R.  407. 


COiNTRACT  —  SEAWORTHINESS.  21 

responsibility  that  the  vessel  is  seaworthy  in  point  of 
fact :  and  in  a  case  of  clear  and  dangerous  deficiency,  the 
statute  law  of  this  country  has  provided  a  mode  of  pro- 
ceeding on  the  part  of  mariners  who  have  unwarily  con- 
tracted to  go  to  sea  in  a  vessel  in  this  condition.^     This 

'  "  That  if  the  mate,  or  first  officer  under  the  master,  and  a  majority  of  the 
crew  of  any  ship  or  vessel,  bound  on  a  voyage  to  any  foreign  port,  shall,  af- 
ter the  voyage  is  begun  (and  before  the  ship  or  vessel  shall  have  left  the 
land)  discover  that  the  said  ship  or  vessel  is  too  leaky,  or  is  otherwise  unfit 
in  her  creW,  body,  tackle,  apparel,  furniture,  provisions,  or  stores,  to  pro- 
ceed on  the  intended  voyage,  and  shall  require  such  unfitness  to  be  inquired 
into,  the  master  or  commander  shall,  upon  the  request  of  the  said  mate  (or 
other  officer)  and  such  majority,  forthwith  proceed  to  or  stop  at  the  nearest 
or  most  convenient  port  or  place  where  such  inquiry  can  be  made,  and  shall 
there  apply  to  the  judge  of  the  district  court,  if  he  shall  there  reside,  or  if 
not,  to  some  justice  of  the  peace  of  the  city,  town,  or  place,  taking  with 
him  two  or  more  of  the  said  crew,  who  shall  have  made  such  request;  and 
thereupon  such  judge  or  justice  is  hereby  authorized  and  required  to  issue 
his  precept,  directed  to  three  persons  in  the  neighborhood,  the  most  skilful 
in  maritime  affairs  that  can  be  procured,  requiring  them  to  repair  on  board 
such  ship  or  vessel,  and  to  examine  the  same,  in  respect  to  the  defects  and 
insufficiencies  complained  of,  and  to  make  report  to  him,  the  said  judge  or 
justice,  in  writing,  under  their  hands,  or  the  hands  of  two  of  them,  whether 
in  any  or  in  what  respect,  the  said  ship  or  vessel  is  unfit  to  proceed  on  the 
intended  voyage,  and  what  addition  of  men,  provisions,  or  stores,  or  what 
repairs  or  alterations  in  the  body,  tackle,  or  apparel,  will  be  necessary  ;  and 
upon  such  report,  the  said  judge  or  justice  shall  adjudge  and  determine,  and 
shall  endorse  on  the  said  report  his  judgment,  whether  the  said  ship  or  ves- 
sel is  fit  to  proceed  on  the  intended  voyage;  and  if  not,  whether  such  re- 
pairs can  be  made,  or  deficiencies  supplied,  where  the  ship  or  vessel  then 
lays,  or  whether  it  be  necessary  for  llic  said  ship  or  vessel  to  return  to  the 
port  from  whence  she  first  sailed,  to  be  there  refitted ;  and  the  master  and 
crew  shall  in  all  things  conform  to  the  said  judgment;  and  the  master  or 
commander  shall,  in  the  first  instance,  pay  all  the  costs  of  such  view,  re- 
port, and  judgment,  to  be  taxed  and  allowed  on  a  fair  copy  thereof,  certified 
by  the  said  judge  or  justice.  13ut  if  the  comijiiiint  of  the  said  crew  shall 
appear,  upon  the  said  report  and  judgment,  lo  have  been  without  foundation, 
then  the  said  master,  or  the  owner  or  consignee  of  such  ship  or  vessel,  shall 
deduct  the  amount  thereof,  and  of  reasonable  damages  for  the  detention  (to 
be  ascertained  by  the  said  judge  or  justice)  out  of  the  wages  growing  due 


22  CONTRACT  —  SKAWOUTIIINKSS. 

statnti^  Ikis  rcfciTiici^  ohIn  to  (lie  case  of  unsonworthiness 
discovcnnl  altci-  ilic  vovaiic  lias  bciiim,  and  hclorc  the 
vessel  has  Icll  the  land.  A  rec(>iil  statute;  has  pro- 
Mcltnl  a  mode  oi  proceeding  in  a  loreii;!!  port,  I)}  w  liicli 
tlie  condition  of  the  vess(^l  at  the  time  she  left  the  home 
port  may  be  ascertained  abroad,  under  tlie  direction  of 
tlie  American  coiisnl  or  conmicrcial  agent.  If  the  vessel 
is  found  tt)  iiav6  sailed  from  the  home  port  unsuitably  pro- 
vided in  any  important  or  essential  particular,  by  neglect 
or  (lesii!ii,  the  consul  is  empowered  to  discharge  such  of 
the  crt>\\  as  require  it,  each  of  whom  is  declared  entitled  to 
three  months'  ])ay  in  addition  to  his  wages  to  the  time  of 
discharge  :  but  if  the  deficiency  is  found  to  have  been  the 
result  of  mistake  or  accident,  and  could  not  in  the  exercise 
of  ordinary  care  have  been  known  and  jirovided  against 
before  the  sailing  of  the  vessel,  and  the  master  shall,  in  a 
reasonable  time,  remove  the  causes  of  complaint,  then  the 

to  the  complaining  seamen  or  mariners.  And  if,  after  such  judgment,  such 
ship  or  vessel  is  fit  to  proceed  on  her  intended  voyage,  or  after  procuring 
such  men,  provisions,  stores,  repairs,  or  alterations,  as  may  be  directed,  the 
said  seamen  or  mariners,  or  either  of  them,  shall  refuse  to  proceed  on  the 
voyage,  it  shall  and  may  he  lawful  for  any  justice  of  the  peace  to  commit, 
by  warrant  under  his  hand  and  seal,  every  such  seaman  or  mariner  (who 
shall  so  refuse)  to  the  common  jail  of  the  county,  there  to  remain  without 
bail  or  mainprise,  until  he  shall  have  paid  double  the  sum  advanced  to  him 
at  the  time  of  subscribing  the  contract  for  the  voyage,  together  with  such 
reasonable  costs  as  shall  be  allowed  by  the  said  justice,  and  inserted  in  the 
said  warrant,  and  the  surety  or  sureties  of  sucii  seaman  or  mariner  (in  case 
he  or  ^hey  shall  have  given  any)  shall  remain  liable  for  such  payment;  nor 
shall  any  such  seaman  or  mariner  be  discharged  upon  any  writ  of  habeas 
corpus,  or  otherwise,  until  such  sum  be  paid  by  him  or  them,  or  his  or  their 
surety  or  sureties,  for  want  of  any  form  of  commitment,  or  other  previous 
proceedings.  Provided,  That  suflicient  matter  shall  be  made  to  appear, 
upon  the  return  of  such  habeas  corpus  and  an  examination  then  to  be  had, 
to  detain  him  for  the  causes  hereinbefore  assigned."  Act  U.  S.  20th  July, 
1790,  s.  3. 


CO?sTRACT  — SEAWORTHINESS.  23 

crew  are  to  remain  and  discharge  their  duty :  otherwise, 
upon  their  request,  they  are  to  be  discharged  and  are  to 
receive  one  month's  wages  in  addition  to  the  pay  up  to 
the  time  of  discharge.^  The  master  is  to  pay  the  ex- 
penses of  the  survey,  but  may  deduct  them,  proportionally, 
from  the  wages  of  the  crew,  if  the  complaint  is  found  to 
be  without  good  and  sufficient  cause,  together  with  rea- 
sonable damages  for  the  detention.^ 

Both  these  statutes,  probably,  intended  to  leave  the 
case  of  unseaworthiness  occurring  during  the  voyage,  un- 
touched ;  and  that  case,  in  regard  to  the  obligations  of 
the  crew,  must  be  determined  by  the  general  law. 

In  the  case  of  Dixon  v.  The  Cyrus,  Judge  Peters  (of 
the  District  Court  of  Pennsylvania)  intimated,  that  w  hen 
the  vessel  is  at  sea,  no  defect  then  discovered,  and  nothing 
Ijut  an  absolute  inability  of  the  ship  —  meaning,  I  pre- 
sume, a  state  of  things  amounting  to  WTeck  —  will  justify 
the  seamen  in  quitting  her  :  and  this  is  undoubtedly  true, 
because  it  is  implied  in  that  principle  of  law  w  hich  binds 
the  seamen  to  the  vessel  through  all  perils  at  sea.^  But 
where  the  vessel  is  in  a  foreign  port,  after  having  sailed 
on  the  outward  voyage,  whether  a  domestic  or  foreign 
port,  and  unseaworthiness  of  a  dangerous  character  occurs 
through  damai^e  received  after  sailing,  can  the  seamen, 
upon  j)rinci])l(.'s  of  the  gcuieral  maritime  law,  be  compelled 
to  proceed  again  to  sea,  the  master  refusing,  or  not  having 
the  means,  to  make  the  proper  repairs  ?  Upon  principle, 
it  seems  to  me  very  clear  that  they  cannot  be  bound  to 
proceed.     The  statute  of  1790,  includes  among  the  causes 

'  Act.  U.  S.  20tli  July,  1810,  s.  12,  13,  11,  15.     See  Appendix,  fur  the 
Statute. 
•  The  Ntmrod,  Ware's  R.  1. 


24  CONTUACT  — CERTAINTY  OF   VOYACJE. 

for  a  survcv  heroic  thr  vessel  leaves  on  her  out^^'ard  vojaf!;e, 
a  delieieiuN  of  pwrisions ;  and  liord  Stoweil  once  held, 
tiiat  a  s(Mioiis  delieiency  «»!'  provisions,  while  in  an  out- 
ward porl,  justiruHJ  uiiat  would  otherwise  have  been  a 
desertion.'  Tlie  same  hij^h  aiithoritj  also  justilied  a  de- 
sertion on  tile  iiiound  that  the  master  had  altered  the 
shippini;  articles  in  a  foreifj;n  port.~  A  foriiori,  it  would 
seem,  must  a  dangerous  deficiency  in  the  vessel  itself,  in 
j)ort,  discharge  the  mariner's  contract,  il",  on  a  fair  remon- 
strance, the  master  does  not  make  the  necessary  repairs ; 
for  it  can  never  be  re(jnired  by  such  a  system  as  the  mari- 
time law,  that  this  contract  should  imply  an  obligation  on 
the  part  of  the  seamen  to  expose  their  lives  to  perils  di- 
rectly referrible  to  the  negligence  of  the  owner  or  master, 
w^hen  the  vessel  is  not  at  sea.^ 

4.   It  is  also  an  implied  obligation  that  the  voyage  shall 

'  The  Cast  ilia,  1  Haggard's  Adm.  R.  59.  See  also  Sigard  v.  Roberts,  3 
Esp.  R.  71. 

»   The  Eliza,  1  Haggard's  Adm.  R.  1S2. 

'  These  views  are  sustained  by  a  decision  made  in  the  District  Court  of 
the  United  States  for  Massachusetts  District,  of  which  I  have  been  fur- 
nished with  a  note  by  the  learned  judge,  since  the  above  text  was  written. 
The  vessel  in  which  the  libcllant  was  mate,  was  condemned  at  Liverpool, 
(Eng.)  as  unseaworthy.  The  mate  sued  for  wages,  at  the  highest  rate  in 
the  port  from  which  she  sailed,  there  being  no  written  contract,  and  for  aug- 
mented allowance  on  account  of  the  extra  exposure  in  a  defective  vessel. 
The  first  allegation  was  sustained  ;  but  as  to  the  other  ground  of  demand, 
it  was  considered  that  the  circumstances  did  not  render  the  owners  liable 
to  the  crew  for  special  damage,  there  being  no  gross  or  wilful  error  or  omis- 
sion ;  that  the  seamen,  before  they  shipped  or  sailed,  must  be  supposed  to 
pay  reasonable  attention  to  the  character,  capacity  and  equipment  of  the 
vessel,  in  reference  to  their  safety,  and,  if  dissatisfied,  should  resort  to  the 
course  prescribed  by  the  statute  —  application  for  a  survey.  Per  Davis,  J. 
Clark  V.  Curtis.  Dist.  C.  U.  S.  Mass.  Dist.  Aug.  1839.  See  also,  Porter  v. 
Andrews,  9  Johns.  R.  350.  The  Nimrod,  Ware's  R.  1.  U.  States  v.  Ash- 
ton,  2  Sumner's  R.  13. 


COxVTRACT  — CERTAINTY  OF  VOYAGE.  25 

be  definite  and  certain,  and  shall  not  be  deviated  from. 
The  ancient  maritime  laws  contained  different  provisions 
with  respect  to  the  obligations  of  the  seamen,  when  the 
master,  having  arrived  at  the  outward  port  of  destination, 
should,  of  his  own  act,  determine  to  go  further.     Under 
some  codes,  the  seamen  were  discharged  from  their  con- 
tract, and  were  not  bound  to  go  further  without  a  new 
agreement.^     By  the  laws  of  some  of  the  other  codes, 
the  master  was  obliged  to  give  them  an  additional  com- 
pensation, which  they,  however,  were  bound  to  accept, 
without  the  right  to  elect  a  discharge.^     But  the  modern 
rule  is  uniformly  in  favor  of  a  strict  compliance  with  the 
terms  of  the  contract  describing  the  voyage,^  and  also 
that  it  shall  be  fairly  and  sufficiently  described."*    Pothier 
states  the  entire  substance  and  reason  of  the  rule,  when 
he  says,  that  to  require  the  mariner  to  go  on  another 
voyage  than  that  which  he  has  contracted  for,  is  to  exact 
of  him  quite  another  thing  than  that  which  he  has  pro- 
mised.^    The  law  of  this  country  and  of  England  is  the 
same  —  that  a  spontaneous  deviation  of  importance  enti- 
tles the  mariner   to   his  discharge  ;   and  if  he  does  not 
choose   to  leave   the  vessel,  he  is  entitled  to  additional 
compensation.'^     But  deviations  proceeding  from  accident 

'  Les  Assizes  et  Usages  du  Royaurae  de  Jerusalem.  Pardessus,  Lois 
Maritimes,  tome  i,  p.  279. 

*  Consolalo  del  Mare,  cli.  1 IG,  Pardessus,  tome  ii,  p.  144.  Lois  de  Wtst- 
capelle,  Jugement  xxi.  Pardessus,  tome  i,  p.  383.  Lois  D' OUron,  art.  20, 
Pardessus,  lome  i,  p.  337.  Droit  Mar.  de  Dancmarck,  xmi,  Pardessus, 
tome  iii,  p.  275.     Sec  also,  Jacobsen's  Sea  Laws,  p.  142  —  By  Prick. 

*  VOrd.  dp  la  Marint,  liv.  2,  tit.  7,  art.  4.     Valin,  Com.   lome  i,  p.  548, 

♦  Act  U.  S.  1790,  ch.  56,  s.  1.     Act  U.  S.  20ih  July,  1840,  sec.  3. 

•  Polhier,  Louages  Mar.  n.  177  ;  Edit.  Dupin,   tome  iv,  p.  400. 

•  Drown  V.  Jones,  2  Gallisons  R.  477.  Moran  V.  Bandin,  2  Peters's  Adm. 
R.  415.     Douglass  v.  Eyre,  Gilpm's  R.  147.    Magce  v.  f>hip  Moss,  Gilpin's 


2G  CONTRACT  — TRF.XTMKNT  OF  TUT.   MARINKR. 

or  ovoniiliiii:  authority,  do  not  ajuount  to  a  l)roach  of  the 
owner's  contract  with  the  mariner.' 

The  act  of  C\>nj2;ress  of  IB'tO,  empowers  American 
consuls,  or  connnercial  a<;ents,  in  foreign  ports,  to  inquire 
into  the  causes  of  deviation,  and  to  discharge  the  crew, 
if  tliey  re(piire  it,  and  tlie  master  is  to  pay  an  advance  of 
tinee  months'  wages,  in  case  the  deviation  is  in  viohition 
of  the  mariner's  contract.^ 

5.  It  is  further  a  part  of  the  general  obligations  of  the 
contract,  that  the  mariner  shall  be  treated  with  decency 
and  humanity  by  the  master  and  the  officers,  and  by  his 
shij)mates.^  If  a  seaman  is  cruelly  beaten  or  ill  used  by 
an  officer,  without  justifiable  cause,  in  the  presence  of  the 
master,  and  the  master  does  not  interfere,  he  will  be  pre- 
sumed to  adopt  the  conduct  of  his  officer,  and  w  ill  be  re- 
sponsible for  all  its  consequences  and  effects  upon  the 
mariner's  contract/  Thus,  if  the  seaman,  in  consequence 
of  such  ill  usage,  w^ere  obliged  to  leave  the  ship,  and  to 
his  action  for  wages  the  master  should  plead  a  desertion, 
it  would  be  competent  to  the  seaman  to  show  that  his 
desertion  was  involuntary  and  compulsory,  and  the  de- 


R.  219.  The  Cambridge,  2  Hag.  Adm.'R.2i3.  The  George  Home,  1  Hag. 
Adm.  R.  370.  The  Countess  of  Harcourt,  1  Hag.  Adm.  R.  248.  Murray 
V.  Kdlogg,  9  Johns.  R.  227.     1  Hall's  Am.  Law  Jour.  207. 

'   The  Cambridge,  ut  supra. 

»  Act  U.  S.  20ih  July,  1840,  sec.  9.     See  Appendix. 

»  Rice  V.  The  Polly  and  Kitty,  Pelers's  Adm.  R.  420.  The  Maria,  Peters's 
Adm.  R.  193.  Shfncood  v.  M'Intosh,  Ware's  R.  109.  Steele  v.  Thacher, 
Ware's  R.  91.  Magee  v.  Ship  Moss,  Gilpin's  R.  219.  Limland  v.  Stevens, 
3  Espinasse,  269. 

*  Thomas  v.  Lane,  2  Sumner's  R.  1.  United  Slates  v.  Taylor,  2  Sumner's 
R.  584.  See  also  Elwell  v.  Martin,  Ware's  R.  53.  Butler  v.  M'Lellan, 
Ware's  R.  219.      Ward  v.  Ames,  9  Johns.  R.  138. 


CONTRACT  — SUBSISTENCE   AND   SICKNESS.  27 

fence  would  not  prevail.^  The  master  is  in  fact  bound 
to  protect  the  seamen,  not  only  against  the  cruelty  of  his 
officers,  but  against  any  oppression  or  ill  usage  on  the 
part  of  their  shipmates.  The  ancient  maritime  laws  con- 
tain numerous  traces  of  this  obligation.^  The  rule  by 
which  the  mariner's  conti-act  is  held  to  be  discharged 
for  cruelty  o'f  the  master,  is  subject  to  the  limitation  of  a 
clear  case  of  an  abuse  of  power ;  without  which  the  con- 
tract will  not  be  held  by  the  courts  to  be  discharged.^ 

6.  That  the  owners  and  master  shall  provide  for  the 
subsistence  of  the  mariners,  during  the  time  of  the  con- 
tinuance of  the  contract,  in  such  manner  and  with  such 
provisions  as  the  ix)sitive  law  of  their  country  enjoins.* 
Subsistence,  unless  the  contrary  is  expressed  in  the  con- 
tract, or  implied  in  the  usages  of  a  particular  trade — as 
in  some  of  the  fishing  voyages  of  New  England  —  is  a 
part  of  the  compensation  for  the  mariner's  services.^  The 
importance  of  this  topic  will  require  its  special  considera- 
tion hereafter. 

7.  That  the  seamen  shall  be  cured  at  the  expense  of 
the  ship,  of  all  sickness  and  injuries  occurring  while  in 

'  If  in  administering  merited  punishment  on  a  seaman,  by  the  oflicers, 
they  proceed  wilh  unnecessary  harshness  of  manner,  and  thereby  a  severe 
injury  is  unintentionally  done  to  (he  man,  as  the  dislocation  of  an  arm,  they 
will  be  liable  for  the  actual  pecuniary  damage  sustained  by  the  man,  though 
not  for  vindictive  damages.     Elwell  v.  Martin,  ul  supra. 

*  Lois  D'Oleron,  act  12,  Pardessus,  tome  i,  p.  332.  Lois  de  WcsfcapcUe, 
Jugement  12,  Pardessus,  tome  i,  p.  378.  Droit  Mar.  de  Wislnj,  art.  26,  Par- 
dessus, tome  i,  p.  479.     L'Ord.  de  la  Marine,  liv.  2,  tit.  1,  art.  22. 

»  Turner's  Case,  Ware's  R.  83.  Congress  have  provided  a  criminal  pun- 
ishment for  cruelly  on  the  part  of  any  master  or  officer  towards  any  of  the 
crew.     Act  U.  S,  1835,  ch.  40,  [313]  sec.  3.     See  post,  part  2,  ch.  1. 

*  Pothier,  Louagrs  Marilimts,  n.  215,  edit.  Dupin,  tome  iv,  425. 

*  '/'/uj  Madonna  D' Jdra,  1  Dodsou's  Adm.  R.  37. 


28  CONTUACT  — CONCLUSIVENESS  OF. 

\\\c  sliij)\s  service,  not  occasioned  hy  their  own  faults  or 
vices,  or  \\\\\\v  al)sent  upon  tlu>ir  own  business  or  pleas- 
ure.' This  j)iin<iple  Ikis  (>xiste(l  for  ages  in  the  maritime 
law;^  it  was  followed  in  the  French  ordinance;'  and  is 
recoijnised  in  the  statute  law  of  the  United  States,  and 
ihf  fullest  vlTvvi  has  been  i;iven  to  it  by  the  courts.''  Its 
limitations  and  applications  will  be  considered  in  a  sub- 
sequent chapter. 

8.  That  the  master  shall  brinii  the  seamen  back  to 
their  country.  The  provisions  of  our  statute  law  upon 
this  subject  will  be  found  in  the  chapter  on  the  Discharge 
of  Mariners.^ 

These  are  some  of  the  important  obligations  assumed 
bv  the  owner  and  master,  in  the  hiring  of  mariners ;  and 
it  now  remains  to  enumerate  those  of  the  mariners  them- 
selves towards  the  master  and  owner,  under  the  same 
general  review^ 

1.  It  is  the  duty  of  a  seaman  to  exert  himself  to  the 
utmost  in  the  service  of  the  ship,  for  the  compensation 
sti})ulated  in  his  contract ;  so  that  any  promise  of  extra 
pay,  as  an  inducement  to  extraordinary  exertion,  made 
idien  the  ship  is  in  distress,  or  obtained  by  any  unfair 


'  Pothier,  Louages  Mar.  n.  188,  189,  190,  191.  Valin,  Com.,  tome  i,  p. 
721. 

*  Droit  Mar.  Des  Rhodiens,  Pardessus,  tome  i,  p.  258.  Lois  D^Oleron, 
art.  6,  7.  IbiJ,  p.  327.  Droit  Mar.  de  Wisbij,  art.  20,  21:  and  the  au- 
thorities cited  infra,  part  2,  ch.  3. 

^  VOrd.  de  la  Marine,  liv.  3,  tit.  4,  art.  11. 

*  Acts  U.  S.  20ih  July,  1790,  ch.  56,  sec.  8,  and  2d  March,  1805,  ch.  88. 
Harden  v.  Gordon,  2  Mason's  R.  541.  JReedv.  Canfield,  1  Sumner's  R.  195. 
Pierce  v.  The  Enterprise,  Gilpin's  R.  435.  Walton  v.  The  Neptune,  Pelers's 
Adm.  R.  142,  152. 

*  Infra,  part  2,  ch.  5. 


CONTRACT  — WARRANTY  OF   CAPACITY.  29 

practices  or  advantage  taken  by  the  seamen,  is  wholly 
void.^ 

2.  There  is  an  implied  warranty  in  the  mariner's  con- 
tract, that  the  party  is  competent  in  knowledge  and  bodily 
health,  to  the  station  for  which  he  contracts.  The  elder 
maritime  laws  contained  serious  penalties  for  ignorance 
of  the  duties  for  which  the  seaman  had  engaged  himself. 
By  the  Laws  of  JVisby,  such  a  seaman  forfeited  the  ad- 
vance wages  that  had  been  paid  to  him,  and  an  additional 
sum  equal  to  half  of  all  his  wages.^  By  the  Consolato, 
he  was  entitled  only  to  the  quantum  meruit  which  certain 
of  the  officers  should  determine  to  have  been  earned.'^ 
The  modern  rule,  recognised  by  our  courts,  is,  that  when 
a  man  contracts  for  a  particular  service,  or  duty,  he  en- 
gages both  for  fidelity  in  the  performance  of  that  duty, 
and  for  that  capacity  and  those  quaUties  which  will  ena- 
ble him  to  perform  the  service  in  a  satisfactory  manner. 
But  he  does  not  stipulate  for  extraordinary  talents  or  ca- 
pacity ;  but  for  fair  and  reasonable  knowledge  and  due 
diligence.  Under  this  limitation,  if  the  master  finds,  v\\)o\\ 
trial,  that  there  is  on  the  part  of  the  seaman  either  a  want 
of  fidelity,  or  of  capacity,  which  discpialifies  him  for  the 
service,  he  will  be  Justified  in  putting  him  u})on  a  dif- 
ferent duty.     In  such  a  case,  the   master  cannot  refuse 

1  Hams  V.  Watson,  Peake's  N.  P.  C.  72.  Slilk  v.  Myrich,  2  Camp.  317. 
Thompson  v.  Haielock,  1  Camp.  527.  Abbot  on  Sliipping,  part  4,  ch.  1,  p. 
441.  As  to  the  conclusiveness  of  the  shipping  articles,  on  the  jjoint  of 
wages,  see  infra,  part  1,  ch.  3  ;  and  as  to  liie  earning  of  rewards  in  the  na- 
ture of  salvage,  see  infra,  part  4,  ch.  2. 

»  Droit  Mar.  de  Wisbij,  art.  2,  Pardessus,  tome  i,  p.  464.  See  also  The 
Maritime  Law  of  Han)burg,  art.  20,  Pardessus,  tome  iii,  p.  371. 

»  Conxola/o  d< I  Marc,  ch.  79,  [124J  Pardessus,  tome  ii,  p.  122.  See  also 
Jacobsen's  Sea  Laws,  book  2,  ch.  2. 


30  CONTRACT  — COINIMEISCKMF.NT  OF  SERVICE. 

altoiietluT  to  pay  him  waj2;os,  but  ho  may  make  a  reasona- 
l)lr  (Itthictioii  tVom  tlic  wa^os  ai;rtM'(l  upon."  But  the 
mariuin-  is  not  to  he  dt'j^iadcd  lor  si i<j;ht  causes ;  nor  is 
tin-  master,  whvn  a  seaman  has  shipped  lor  a  particular 
service,  autlH)ri'/ed  to  ciian^e  the  terms  of  the  contract 
ca})rieiouslv,  and  recpiire  of  him  duties  lor  wiiich  he  did 
not  eni;af2;e.-  In  n^spect  to  bodily  healtli,  it  has  been 
held  tiiat  if  a  seaman  sliij),  and  represent  himself  as  able- 
lx)died,  and  afterwards  die  on  the  voyage  of  a  disease 
which  he  had  concealed  at  the  time  of  shipment,  his  ad- 
ministrator can  have  no  claim  for  wages.'  It  has  been 
considered  that  temporary  appointments  made  by  the 
master  on  an  emergency,  are  held  at  his  pleasure,  and 
stand  on  a  different  footing  from  that  of  a  party  making 
his  contract  for  the  office  and  for  the  wages  belonging 
to  it.* 

3.  That  the  seamen  shall  render  themselves  on  board 
at  the  day  and  hour  agreed  u})on,  and  from  thence  to 
the  completion  of  the  voyage,  remain  m  the  service  of  the 
ship.     By  the  Statute  of  the  United  States  for  the  regu- 


'  Shencood  v.  Mcintosh,  Ware's  Adm.  Decis.  109.  The  Mentor,  4  Mason's 
R.  84.  Alkyns  v.  Burrows,  Peters's  Adm.  R.  244.  The  Orozimbo,  Peters's 
Adm.  R.  250.  The  same  principle  is  expressly  adopted,  by  a  special  claOse, 
in  the  new  shipping  paper  ordered  to  be  used  throughout  the  United  King- 
dom of  Great  Britain,  by  the  Act  5  and  6  Wm.  IV.  ch.  19,  amending  and 
consolidating  the  Laws  relating  to  Merchant  Seamen  :  the  clause  reads, 
"and  if  any  seaman  shall  enter  himself  as  qualified  for  a  duty  to  which  he 
shall  prove  not  to  be  competent,  he  will  be  subject  to  a  reduction  of  the 
rate  of  wages  hereby  agreed  for,  in  proportion  to  his  incompetency."  Steele's 
Ship  Master  Assistant,  (London,  1837,)  p.  33.  It  is  also  adopted  in  the 
shipping  paper  used  in  the  whale  fisheries,  out  of  the  port  of  New  Bedford. 

*  Sherwood  v.  M'lntosh.  ut  supra.      The  Mentar,  ut  supra. 
'   The  Richmond,  Peters's  Adm.  R.  263. 

♦  Wood  et  al.  v.  The  Ntmrod,  Gilpin's  R.  83. 


CONTRACT  —  ABSENCE  —  DESERTION.  31 

lation  of  merchant  seamen,  on  all  voyages  to  foreign  ports, 
and  in  coasting  voyages,  other  than  to  an  adjoining  State, 
the  time  when  each  seaman  shall  render  himself  on  board 
is  to  be  made  part  of  the  written  contract,  by  a  memo- 
randum set  against  his  name  at  the  foot  of  the  paper; 
and  if  any  seaman  does  not  so  render  himself  on  board, 
or  deserts,  so  that  the  ship  proceeds  to  sea  without  him, 
he  forfeits  a  sum  equal  to  his  advance  wages,  over  and 
besides  such  advance.  ^  A  justice  of  the  peace  may,  upon 
comj)laint  of  the  master,  issue  a  warrant  to  apprehend  a 
deserting  seaman,  and  commit  him  to  the  house  of  cor- 
rection, or  common  gaol,  there  to  remain  until  the  ship  is 
ready  to  sail  on  her  voyage,  and  then  cause  him  to  be 

'  "That  at  the  foot  of  every  such  contract,  there  shall  be  a  memorandum 
in  writing,  of  the  day  and  the  hour  on  which  such  seaman  or  mariner,  who 
shall  ship  and  subscribe,  shall  render  themselves  on  board,  to  begin  the  voy- 
age agreed  upon.  And  if  any  such  seaman  or  mariner  shall  neglect  to 
render  himself  on  board  the  ship  or  vessel,  for  which  he  has  shipped,  at  the 
time  mentioned  in  such  memorandum,  and  if  the  master,  commander,  or 
other  officer  of  the  ship  or  vessel,  shall,  on  the  day  on  which  such  neglect 
happened,  make  an  entry  in  the  logbook  of  such  ship  or  vessel,  of  the  name 
of  such  seaman  or  mariner,  and  shall,  in  like  manner,  note  the  time  that  he 
so  neglected  to  render  himself,  (after  the  time  appointed),  every  such  sea- 
man or  mariner  shall  forfeit,  for  every  hour  which  he  shall  so  neglect  to  ren- 
der himself,  one  day's  pay,  according  to  the  rate  of  wages  agreed  upon,  to 
be  deducted  out  of  his  wages.  And  if  any  such  seaman  or  mariner  shall 
wholly  neglect  to  render  himself  on  board  of  such  ship  or  vessel,  or  having 
rendered  himself  on  board,  shall  afterwards  desert  and  escape,  so  that  the 
ship  or  vessel  proceed  to  sea  without  him,  every  such  seaman  or  mariner 
ehall  forfeit  and  pay  to  the  master,  owner,  or  consignee,  of  the  said  ship  or 
vessel,  a  sum  equal  to  that  which  shall  have  been  paid  to  him  by  advance 
at  the  time  of  signing  the  contract,  over  and  besides  the  sum  so  advanced, 
both  which  sums  shall  be  recoverable  in  any  court,  or  before  any  justice  or 
justices  of  any  state,  city,  town,  or  county,  within  the  United  States,  which, 
by  the  laws  thereof,  have  cognizance  of  debts  of  equal  value,  against  such 
seaman  or  mariner,  or  his  surely  or  sureties,  in  case  he  shall  have  given 
surely  to  proceed  the  voyage."     Act  U.  S.  1700,  ch.  56,  sec.  2. 


32  COM'KACT  —  ABSEKCE  —  DESERTION. 

doliv(Mvd  1(>  the  iiiiistcr. '  if  a  seaman  absents  liimself 
^^■ith(>llt  It  inc,  aflcr  llic  (iinc  aiiived  on  lo  rrnder  liiniscH'  on 
IkkikI,  (II  tlif  rommcncimcnt  of  the  voyagr,  lio  forfeits  one 
day's  |)a\  lor  e\er\  iiour  ol  absiMiee.^  The  same  provis- 
ions, bv  a  subsequent  statute,  ar(^  extended  to  seamen 
employed  in  the  Jisheries.^  In  order  to  remove  as  many 
obstacles  to  the  prompt  jjerformance  ol"  the  contract,  as 
can  be  |)ro\ided  against,  the  Act  of  1790  further  provides, 
that  if  any  ])erson  shall  harbor  or  secrete  a  seaman,  know- 
ins;  him  to  be  shij)])ed,  he  shall  be  subject  to  a  pecuniary 
penalty;  and  debts  exceedinji;  one  dollar,  contracted  by 
a  seaman  during  the  time  he  l)elonG;s  to  a  shi]),  are  not 
recoverable  from  him  until  the  end  of  the  voyage.^ 

'  "That  if  any  seaman  or  mariner,  who  shall  have  signed  a  contract  to 
perform  a  voyage,  bhall,  at  any  port  or  place,  desert,  or  shall  absent  him- 
self from  such  ship  or  vessel,  without  leave  of  the  master,  or  officer  com- 
manding in  the  absence  of  the  master,  it  shall  be  lawful  for  any  justice  of 
the  peace  within  the  United  States  (upon  the  complaint  of  the  master)  to 
issue  his  warrant  to  apprehend  such  deserter,  and  bring  him  before  such 
justice;  and  if  it  shall  then  appear,  by  due  proof,  that  he  has  signed  a  con- 
tract within  the  intent  and  meaning  of  this  act,  and  that  the  voyage  agreed 
for  is  not  finished,  altered,  or  the  contract  otherwise  dissolved,  and  that  such 
seaman  or  mariner  has  deserted  the  ship  or  vessel,  or  absented  himself 
without  leave,  the  said  justice  shall  commit  him  to  the  house  of  correction, 
or  common  gaol  of  the  city,  town,  or  place,  there  to  remain  until  the  said 
ship  or  vessel  shall  be  ready  to  proceed  on  her  voyage,  or  till  the  master 
shall  require  his  discharge,  and  then  to  be  delivered  to  the  said  master,  he 
paying  all  the  cost  of  such  commitment,  and  deducting  the  same  out  of  the 
wages  due  to  such  seaman  or  mariner,"     Act  U.  S.  1790,  ch.  56,  sec.  7. 

'  Sec.  2,  ut  supra. 

*  Act  U.  S.  June  19,  1813,  ch.  2,  sec.  1. 

*  "  That  if  any  person  shall  harbor,  or  secrete,  any  seaman  or  mariner, 
belonging  to  any  shipor  vessel,  knowing  them  to  belong  thereto,  every  such 
person,  on  conviction  thereof,  before  any  court  in  the  city,  town,  or  county, 
where  he,  she,  or  they  may  reside,  shall  forfeit  and  pay  ten  dollars  for 
every  day  which  he,  she,  or  they,  shall  continue  so  to  harbor  or  secrete  such 
seaman  or  mariner,  one  half  to  the  use  of  the  person  prosecuting  for  the 


CONTRACT  —  OBEDIENCE  OF   ORDERS.  33 

The  definition  and  consequences  of  Absence  and  De- 
sertion will  be  considered  at  length  in  a  future  chapter. 

4.  It  is  an  obligation  assumed  by  the  seamen,  to  obey 
all  lawful  commands  of  the  master,  and  not  to  violate  the 
discipline  and  economy  of  the  ship.  This  obligation  is 
almost  uniformly  made  a  part  of  the  written  contract;' 
but  apart  from  all  express  contract,  it  results  from  the 
nature  of  the  master's  authority  over  the  crew,  and  thek 
relation  to  the  ship.^  This  authority,  and  the  rights 
which  result  from  it,  are  indispensable,  and  ascend  to  the 
most  remote  periods  in  the  history  of  maritime  law. 
The  provisions  of  different  positive  codes,  m  respect  to 
the  mode  of  exercising  it,  have  varied  with  times  and 
manners  ;  but  they  have  always  been  founded  upon  this 
principle,  that  the  master  must  be  invested  with  a  power, 
which  implies  an  implicit  obedience  on  the  part  of  all 
subject  to  his  authority,  within  the  limits  of  lawful  com- 
mands.    By  some  older  writers,  this  authority  is  likened  to 

same,  the  other  half  to  the  use  of  the  United  States  ;  and  no  sum  exceeding 
one  dollar,  shall  be  recoverable  from  any  seaman  or  mariner  by  any  one  person, 
for  any  debt  contracted  during  the  time  such  seaman  or  mariner  shall  actually 
belong  to  any  ship  or  vessel,  until  the  voyage,  for  which  such  seaman  or  mariner 
engaged,  shrill  be  ended:'     Act  U.  S.  1790,  ch.  56,  sec.  4. 

Upon  ihc  latter  clause  of  this  section,  it  has  been  held  by  the  Supreme 
Court  of  the  State  of  Massachusetts,  that  as  the  law  is  in  restraint  of  a  gen- 
eral rigiit,  the  defendant  who  pleads  its  protection  ought  to  be  held  to  a 
strict  compliance  willi  what  seetn  to  be  its  requisitions,  namely,  to  produce 
the  shipping  paper,  which  is  the  best  evidence  of  his  belonging  to  the  ship, 
and  of  the  day  he  joined  her;  and  that  it  is  not  enough,  in  order  to  let  in 
other  evidence,  to  siiow  that  the  shipping  paper  is  beyond  liie  roach  of  the 
defendant,  without  showing  lliat  it  is  lost  or  destroyed.  Reynard  v.  Breck- 
nell,  4  Pickering's  R.  302. 

'  Abbot  on  Shipping,  p.  2,  ch.  3,  sec.  4,  and  Appendix  No.  V.  Steel's  Ship- 
Masicr's  Assistant,  (Lond.  1837)  p.  23,  33, 

•  Valin,  Comni.  toine  i,  p.  417. 
O 


3-1,  CONTRACT  — OBKDIENCE  OF  ORDERS. 

iliat  of  a  parent,  ov  of  a  master  over  his  pupils  or  a})prenti- 
fivs — ^^  ijunnadmodum  pater  in  Ji/ios,  magister  in  disci- 
pulos,  donii/uis  in  servos  vcljhmi/iares ; '  hut  a  more  modern 
eeh^hrated  jurist  prefers  the  analoijy  of  the  ])areiital  rela- 
tion.* Tlie  distiiKlioii  is  not  perhaj)s  very  im])ortant : 
for  whatever  he  the  exact  description  of  the  ma.ster's 
autlioritv,  it  is  the  duty  of  the  seamen  to  obey  his  com- 
mands in  all  lawful  matters  relating  to  the  navigation  of 
the  shi])  and  the  preservation  of  good  order.' 

The  (]uestion  may  often  be  of  much  practical  importance, 
whether  the  duty  of  obedience  on  the  part  of  seamen 
extends  at  all  beyond  the  service  of  their  own  ship  ;  as 
where  the  master  should  order  them  to  go  to  the  aid  of 
another  vessel  in  distress.  The  duty  of  obedience  is  stated 
by  Lord  Tcnterden,  as  just  cited,  to  attach  to  all  lawful 
commands  reflating  to  the  navigation  of  the  ship,  and  the 
preservation  of  good  order ;  and  this  is  all  that  is  usually 
contracted  for  by  any  express  stijuilation  in  the  articles. 
If  we  go  back  to  the  acknowledged  sources  of  the  mari- 
time law,  we  find  the  duty  thus  stated  in  the  Consolato : 
"  the  seaman  is  obliged  to  obey  every  order  of  the  master 
or  mate,  provided  it  be  not  for  the  service  of  another  ship  ; 
but  he  is  obliged  to  render  all  the  service  which  relates  to 
the  ship  for  which  he  is  hired."'*  Another  chapter  of  the 
same  compilation  contains  an  exception  to  this  general 
rule,  founded  on  the  necessity  of  rendering  aid  to  other 
vessels.     It  declares  that  seamen  may  be  sent  out  of  their 

*  Casaregis,  cited  by  Valin,  tome  i,  p.  449. 

*  Pardessus,  Lois  Marilimes,  tome  i,  p.  332,  note  (1). 
'  Abbot  on  Shippincr,  p.  136.     Part2,  ch.  3,  sec.  4. 

*  Consolato,  ch.  117,  [1G2.]     Pardessus,  tome  i  ,  145.     See  also  ch.  110 
[155.]     lb.  140. 


COiXTRACT  — OBEDIENCE  OF  ORDERS.  35 

own  ship  to  another,  when  the  master  of  such  other  vessel 
has  need  of  a  person  who  knows  how  to  do  something 
indispensable  to  his  manoeuvres,  which  his  own  crew  can- 
not do.^  So  too,  another  chapter  empowers  the  mate  to 
send  the  seamen  to  tow  another  vessel  into  port,  provided 
it  be  not  an  enemy  vessel.^  These  are  the  only  traces 
of  an  exception  to  the  general  rule,  which  I  have  met 
with  in  the  old  law.  They  confirm  the  opinion  that  is  to 
be  deduced  from  the  whole  tendency  of  modern  juris- 
prudence on  the  subject  of  salvage  efforts,  namely,  that 
the  customs  and  usages  of  the  sea,  as  they  have  been 
tacitly  acknowledged  by  the  whole  maritime  world, 
authorize  the  master  to  employ  his  vessel,  and  perhaps  his 
crew,  in  rescuing;  proi)erty,  and  a  fortiori  in  rescuing  life 
from  destruction.^  In  a  late  case  in  the  District  Court 
for  Maine,  a  dictum  ^vas  thrown  out  by  the  very  learned 
Judge  of  that  Court,  tliat  when  a  vessel  in  the  course  of 
her  voyan^e  falls  in  with  a  wreck,  and  the  master  thinks 
proper  to  make  an  attempt  to  save  it,  the  seamen  are 
bound  to  obey  him.'*  Notwithstanding  this  intimation  of 
opinion,  from  a  source  that  is  upon  these  subjects  high 
authority,  the  question  is  so  far  an  unsettled  one,  that  it 
may  not  be  improper  to  suggest  the  practical  difficuhies 
that  lie  in  the  way.  The  question,  I  apprehend,  must 
revert  to  the  contract  itself  whicli  the  seaman  has  stipulated 
to  perform  ;  and  it  is  difficult  to  see  why  his  ])lea  that  he 
had  hired  his  services  only  to  the  ship  to  which  he  was 
attached,  would  not  be  a  perfect  answer  to  any  punishment 

'  Ch.  103,  [148]  Pardessus,  tome  ii,  137. 

*  Cli.  114,  [159]  Pardessus,  tome  ii,  143. 

'   The  Boston  and  Cargo,  1  Sumner's  R.  32S. 

*  The  Cenlunon,  Ware's  R.  477,  482. 


36  CONTKACT  — OBEDlENCi:   OF   ORDERS. 

or  forroiture  that  should  hv  soiiii;ht  to  l)e  inflicted  on  a  dis- 
obedifiicc  of  orders  concerniiiii;  i\uy  other  service.  When 
such  disoh(>di(Mice  should  also  connect  itself  witli  disobe- 
dience ot Ordi-rs  in  the  service  of  his  own  vessel,  it  nnj2;ht 
have  an  important  bearin<i,  as  showin<:;  the  general  spirit 
of  the  party,  and  perha])s  niii^ht  enhance;  a  forfeiture 
grounded  on  the  latter  instances  of  insubordination.' 

In  suggesting;  these  doubts,  I  have  intended  to  say 
nothing  that  shall  impair  the  moral  sense  of  duty  in  re- 
gard to  services,  whether  laige  or  small,  to  life  or  property 
in  peril  on  the  seas ;  which  have  ever  been  rewarded 
with  a  lariic  munificence  by  the  law,  and  the  selfish  and 
M  ilful  refusal  of  which  has  ever  been  visited  with  the 
contempt  and  execration  of  mankind. 

'  So  too,  it  would  certainly  impair  a  mariner's  claim  to  any  share  of 
salvage  that  might  be  awarded  for  services  to  another  ship,  that  he  refused 
to  go  to.  But  mariners  left  by  the  inaster  on  board  their  own  ship,  while 
the  rest  of  the  crew  are  gone  on  a  salvage  enterprise,  are  often  admitted  to 
share  in  the  salvage.     See  The  Jane,  2  Hag.  Adra.  R.  338. 


CHAPTER  III. 

OF  THE  WRITTEN  OR  OTHER  EVIDENCE  OF  THE  MARI- 
NER'S CONTRACT  ;  AND  HEREIN  OF  THE  FORM  AND 
CONSTRUCTION    OF    THE    SHIPPING    ARTICLES. 

The  policy  of  most  maritime  nations  has  required  that 
the  contract  between  the  master  and  owners  of  a  mer- 
chant vessel,  on  the  one  part,  and  the  mariners,  on  the 
other,  should  be  evidenced  by  a  writing,  containing,  uni- 
formly, at  least  two  of  the  principal  stipulations  between 
the  parties  :  Jirst,  a  description  of  the  voyage  ;  and  second, 
the  terms  and  capacity  for  which  the  mariner  engages 
his  services.^  The  reasons  of  this  policy,  growing  out  of 
the  characters  and  situations  of  the  parties,  have  been 
fully  summed  up  by  Lord  Stowell,  when  speaking  of  the 
scrutiny  that  ought  to  be  exercised  into  the  contracts 
themselves.  On  the  one  side,  says  he,  "are  gentlemen 
possessed  of  wealth,  and  intcMit,  not  unfairly,  u])on  aug- 
menting it,  conversant  in  business,  and  ])ossessing  the 
means  of  calling  in  the  aid  of  practical  and  professional 
knowledge.  Oj»  the  other  side,  is  a  set  of  men,  generally 
ignorant  and  illiterate,  notoriouslj  and  proverbially  reck- 

'  L'Ord.  (In  la  Marine,  liv.  3,  lit.  4,  ;irt.  1,  and  ihe  Commentary  tlicrcon, 
Valin,  tome  i,  p.  G75.  Pothier,  Louagrs  Mariiimes,  n.  166.  Jacobsen's 
Sea  Laws,  hook  2,  ch.  2.  Act  5  and  6  Wm.  IV.  ch.  19,  sec.  2.  Act  U.  S. 
20th  July,  1790,  ch.  50,  sec.  1. 


38  WRIT'IT.N   CONTRACT   UKQl'lUKD. 

l(^ss  ;iiul  iin|)r()\  idciit,  ill  proNidcd  willi  [\\r  incniis  of  ob- 
tainiiii;  iiscl'iil  iiilonnalion,  iiiul  almost  ready  to  sifiii  any 
iiisiiimuMHs  iljat  ina\  he  proposed  to  them  ;  and  on  all 
ai-eouiits  reciiiiriii^  protection,  cmmi  against  themselves.'" 
'I'he  Leiiislatiire  ol  tliis  country  lias  not  been  unmind- 
ful of  this  disp.irit\  l)et\\('(Mi  seamen  and  their  emj)Ioyers  ; 
and  has  accordiniiiv  re(|uircd,  tiiat  in  allvoyaj^es  from  any 
|)ort  of  the  United  States  to  any  foreij;"n  port,  and  in  all 
coastiuii  voya;2;es  from  one  state  to  any  other  than  an 
adjoinino;  state,  the  master,  before  proceeding  on  such 
voyage,  shall  make  an  agreement  in  writing  or  print,  with 
every  seaman  or  mariner  on  board,  (except  such  as  shall 
be  apprentice  or  servant  to  him  or  his  owners,)  declaring 
the  vo}  age  or  voyages,  term  or  terms  of  time,  for  which 
such  seaman  or  mariner  shall  be  shipped.^ 

'   The  Minerva,  1  Ilag.  Adrn.  R.  355. 

*  "  Be  it  enacted,  &c.,  that  from  and  after  the  first  day  of  December  next, 
every  master  or  commander  of  any  ship  or  vessel  bound  from  a  port  in  the 
United  Slates  to  any  foreign  port,  or  of  any  ship  or  vessel  of  the  burthen 
of  fifty  tons  or  upwards,  bound  from  a  port  in  one  state  to  a  port  in  any 
other  than  an  adjoining  slate,  shall,  before  he  proceed  on  such  voyage,  make 
an  agreement  in  writing  or  in  print,  wiih  every  seaman  or  mariner  on 
board  such  ship  or  vessel  (except  such  as  shall  be  apprentice  or  servant  to 
himself  or  owners)  declaring  the  voyage  or  voyages,  term  or  terms  of  time, 
for  which  such  seaman  or  mariner  shall  be  shipped.  And  if  any  master  or 
commander  of  such  ship  or  vessel,  shall  carry  out  any  seaman  or  mariner 
(except  apprentices  or  servants  as  aforesaid)  without  such  contract  or  agree- 
ment being  first  made  and  signed  by  the  seamen  and  mariners,  such  master 
or  commander  shall  pay  to  every  such  seaman  or  mariner,  the  highest  price 
or  wages  which  shall  have  been  given  at  the  port  or  place  where  such  sea- 
man or  mariner  shall  have  been  shipped,  for  a  similar  voyage,  within  three 
months  next  before  the  lime  of  such  shipping:  Provided,  such  seaman  or 
mariner  shall  perform  such  voyage  ;  or  if  not,  then  for  such  time  as  he  shall 
continue  to  do  duly  on  board  such  ship  or  vessel;  and  shall,  moreover,  for- 
feit twenty  dollars  for  every  such  seaman  or  mariner,  one  half  to  the  use  of 
the  person  prosecuting  for  the  same,  the  other  half  to  the  use  of  the  United 


WRITTEN"    CONTRACT  — 0^'    WHAT   VOA'AGES.  39 

I  shall  consider  in  tliis  connection,  firsts  what  voyages 
are  within  the  statute  ;  secondly,  the  requisites  of  a  good 
shipping  paper  under  the  statute  and  according  to  the 
maritime  law;  thirdly ,  of  what  the  articles  are  evidence, 
and  how  far  they  are  conclusive ;  fourthly,  the  situation 
of  parties  not  executing  any  written  agreement. 

I.  The  voyages  within  the  statute  are  all  trading 
voyages  from  a  port  of  the  United  States  to  any  foreign 
port,  or  from  a  port  in  one  state  to  a  port  in  any  other 
than  an  adjoining  state.  It  seems  that  the  Act  does  not 
apply  to  a  voyage  commencing  at  a  foreign  |K)rt  to  the 
United  States.'  In  regard  to  coasting  voyages,  it  has 
been  held  that  a  general  coasting  and  trading  voyage,  in 
which  the  vessel  goes  to  ports  in  diffcrcMit  states  of  the 
Union,  is  within  the  statute  requiring  the  contract  to  be 
in  WTiting ;  and  that  if  a  seaman  is  shi})ped  for  such  a 
voyage,  without  any  limitation  of  time,  or  any  final  termi- 
nus of  the  voyage,  either  party,  the  master  or  the  seaman, 
may  put  an  end  to  the  contract  at  pleasure,  provid(^d  it  is 
not  done  at  a  time  and  under  circumstances  particularly 
inconvenient  to  the  other  party.^ 

II.  The  requisites  of  good  and  valid  shipping  articles 
are  few  and  simpk'.  The  first  of  these  is  a  fair  and  in- 
telligible description  of  "  th(3  voyage  ;"  which,  as  used 
in  the  statute,  is  a  tecluiical  phrase,  and  imports  a  defi- 
nite commencfnieiit  and  cnd."^     This  commencement  and 

States  :  and  such  seaman  or  mariner,  not  having  sij^ncd  such  contract,  shall 
not  be  bound  by  the  regulations,  nor  sul)ject  lo  ilie  penalties  and  forfeitures 
contained  in  this  act."     Act  U.  S.  2ntli  July,  171)0,  eh.  56,  sec.  1. 

'  See  Story's  Notes  to  Abbot  on  Shipping,  p.  431.      Gardner  v.  The  Niw 
Jersn/,  Peters's  Adni.  R.  223. 

•  T/ie  Crnsaihr,  Ware's  R.  437, 

*  Brown  v.  Jones,  2  Gallison's  R.  477. 


40  rONTRA(  T  — DF.'^CRirTIOiN   OF'   VOYACE. 

tiul  should  aKvnvs  he  (Icsiixnatocl,  wlicn  ])ra('ticable,  by 
the  j)()its  iwnn  ami  to  \n  hich  the  vessel  is  lo  sail,  and  to 
wiiieh  she  is  to  return.' 

But  it  often  happens  that  loose  and  indelhiito  ex- 
pressions are  nuidc;  use  ol  in  describing  the  A'oyage, 
eitJKM-  from  the  nature^  of  the  enterprise,  or  by  design 
on  the  part  of  the  master  or  shi|)  owner  ;^  and  it  is 
then  that  the  aid  and  authority  of  the  eourts  is  recpiired, 
to  j)roteet  the  mariner  from  unfair  and  unreasonable  re- 
quisitions. The  Courts  of  Admiralty  have  frequently  had 
occasion  to  dechire  the  meaning  of  this  part  of  the  mari- 
ner's contract.  From  the  cases  w  hieh  have  been  decided 
by  these  tribunals,  certain  rules  of  construction  may  be 
extracted. 

In  the  first  place,  it  has  been  held,  that  where  a 
principal  voyage  is  stated,  by  termini,  as  from  Baltimore 
to  Cura^oa,  and  then  the  Avords  "  or  elsewhere"  are 
add(^d,  these  aa  ords  are  either  void  for  uncertainty,  not 
containing  any  proper  description  which  can  satisfy  the 
meaning  of  the  statute,  or  are  subordinate  to  the  princi- 
pal voyage  stated,  and  that  they  mean  an  authority  for 
the  ship,  in  the  progress  of  the  voyage,  to  pursue  such 
course  as  might  be  necessary  to  accomplish  that  principal 
voyage ;  which  is  what  the  law  would  imply  without  the 
words.^     Secondly,  where  a  usage  of  trade  is  relied  on  to 


'  Magr.e  v.  Ship  Moss,  Gilpin's  R.  219. 

*  In  England,  the  naaster  is  required  to  cause  the  articles  to  be  truly  and 
distinctly  read  over  to  each  seaman,  before  signing,  under  a  penalty  of 
£5  for  each  omission  ;  (Act  5  and  6  Wm.  IV.  ch.  19,  sec.  2,)  a  provision 
which  it  is  desirable  should  have  been  inserted  in  our  statute. 

'  Brmcn  V.  Jones,  2  Gallison's  R.  477.  1  Hall's  Am.  Law  Jour.  207. 
The  Brutus,  2  Gallison's  R.  526,  543,  545.     See  also  The  Minerva,  1  Hag. 


COjSrrRACT  — DESCRIPTION  OF   VOYAGE.  41 

give  a  definite  meaning  to  the  words  "  or  elsewhere,"  so 
as  to  inckide  under  them  an  intermediate  voyage  not  em- 
braced in  the  terms  describing  the  principal  voyage,  (if 
this  can  ever  be  done,)  there  must  be  evidence  of  a 
general  and  uniform  course  of  the  trade,  so  well  kno^A  n, 
as  that  all  parties  must  be  presumed  conusant  of  it ;  oc- 
casional instances  in  which  particular  parties  have  made 
such  second  intermediate  voyage,  are  not  sufficient  for 
this  purpose.'  Thirdly,  where  a  number  of  ports  or 
countries  are  named,  as  constituting  the  voyage,  the  mas- 
ter must  avail  himself  of  them  in  the  order  in  \\inch  tiiey 
stand  in  the  articles,  without  returning  back  to  any  of 
them;^  this  rule  being  analogous  to  that  applied  to  a 
policy  of  insurance,  where  it  has  been  held  that  the  party 
must  avail  himself  of  the  ports  as  they  stand  in  the  policy, 
and  cannot  recur  back  again  from  the  last  to  any  former 
port.^  Fourthlij,  ^\  here  expressions  are  made  use  of  clearly 
authorizing  the  master  to  use  his  discretion  as  to  the  inter- 
mediate course  of  the  voyage,  the  courts  will  not  interfere.* 
The  only  other  essential  provision  in  the  shipping  arti- 
cles is  a  declaration  of  the  terms  and  capacity  for  which 
the  mariner  engages  his  services.  In  Enghuid,  these  are 
required  to  be  specified.^      They  are  not  rc(piired  by  our 

Adm.  R.  347.     The  George  Home,  ]  Hag.  Adra.  R.  370.     The  Countess  of 
Harcourt,  1  Hag.  Adm.  R.  248. 

'  Brown  V.  Jones,  2  Gallison'  R^.  477, 

*  Douglass  V.  Eyre,  Gilpin's  R.  149. 

*  Brown  V.  Jones,  ut  supra. 

*  Wood  V.  The  Kimrod,  Gilpin's  R.  83.  Ma  gee  v.  Ship  Moss,  Gilpin's 
R.  225.  If  the  articles  arc  to  the  final  port  of  discharge,  the  voyage  is  not 
ended  until  the  car^'o  is  wholly  unladen.  The  owner  may  order  the  vessel 
from  port  to  port,  until  the  whole  is  discharged.  United  States  v.  Barker, 
5  Mason's  R.  404. 

*  Act  5  &  6  Wm.  IV.  ch.  19,  sec.  1 . 

6 


42  Mrncr.r.s— rnN-ci.fsivF.\r,ss  of. 

statutes,  dinvtlv  ;  hut  \\\v  oil  section  of  tlic  Act  ol"  20th 
Jiilv,  ir>l(),  is  |)(  rliaps  l)\  iinplicatioii  to  be  eonsidcred  as 
sueh  a  re(|tiisitioM.  It  declares  that  the  articU>s  and  list 
of  the  (Ten  "shall  he  di-eincd  to  contain  all  the  conditions 
of  contract  wiiii  the  cre\N  as  to  their  S(M'vice,  pay,  voyage 
and  all  other  thiuiis;"  —  and  a  subsequent  section  (10th) 
makes  \()i(i  all  shipments  of  seamen  made  contrary  to  the 
j)rovisious  of  this  and  other  Acts.  The  lirst  provision 
merely  makes  the  terms  conclusive,  when  they  are  insert- 
ed in  the  articles.  The  subsequent  provision,  declaring 
shipments  \\  ithout  a  written  contract  to  be  void,  does  not 
|)oint  out  what  the  contract  shall  contain.  But  the  two 
])rovisions  together  may  perhaps  indicate  that  the  intention 
of  the  legislature  was  that  the  terms  and  capacity  should 
be  stated. 

Beyond  these,  I  know  of  no  provisions  which  are  essen- 
tial to  constitute  shi})ping  articles,  in  trading  vessels, 
because  the  law  will  imply  all  the  general,  as  well  as 
particular  rights  and  duties  of  all  parties.  It  may  be 
well,  however,  to  insert  a  stipulation  that  the  services 
contracted  for  shall  be  performed  as  ^becomes  good  sea- 
men, or  to  that  effect ;  and  also  a  covenant  on  the  part 
of  the  master  to  pay  the  wages,  if  those  services  are  so 
performed  as  not  to  entitle  him  to  claim  any  set  off,  or 
damages  against  the  seaman.  But  much  other  matter  is 
often  inserted  in  shipj)in^  articles.  They  are  some- 
times long  and  \erbose  instruments,  containing  not  only 
special  clauses  which  the  ship  owner  thinks  proper  and 
is  lawfully  empowered  to  introduce,  but  frequently  also 
stipulations  which  are  of  no  validity  or  binding  obligation, 
and  \\  hich  only  mislead  one  party  into  a  supposed  sur- 
render, and  the  other  into  a  supposed  gain  of  rights,  which 


ARTICLES  — CO^XLUSIVENESS   OF.  43 

cannot  be  granted  away  by  the  one,  or  acquired  by  the 
other.  This  practice  brings  me  to  the  consideration  of 
the  third  topic. 

III.   Of  what  the  shipping  articles  are  evidence,  and 
how  far  they  are  conclusive  ? 

In  general,  a  contract  between  man  and  man,  thougli 
controlling  the  acknowledged  legal  rights  of  one  party,  is 
binding  according  to  its  terms.  But  it  has  long  been  a 
principle  of  British  and  American  maritime  jurisprudence, 
as  administered  in  the  Courts  of  Admiralty,  that  the  con- 
tracts of  seamen  are  to  be  interpreted  by  other  tests  than 
the  mere  meaning  of  the  terms  in  which  they  are  expressed. 
By  that  feature  of  tlieir  jurisdiction,  which  enables  these 
trilnuials  to  apply  the  principles  of  equity  to  maritime 
contracts,'  they  are  enabled  to  afford  a  protection  to  sea- 
men, Avhich  tlu;  whole  experience  of  courts  of  justice 
shows  to  be  both  luimane  and  necessary.  I  know  not 
where  the  reasons  for  this  protection  are  more  forcibly 
stated,  than  by  Mr.  Justice  Story  in  a  recent  case  of 
mariner's  wages.  "  Seamen,"  he  observes,  "  are  a  class 
of  ])ersons  remarkable  for  their  rashness,  thoughtlessness 
and  im])r()\idence.  They  arc  generally  necessitous,  igno- 
rant of  tlic  nature  aud  extent  of  their  own  rights  and 
j)rivilr'ges,  and  for  the  most  ])art  incapable  of  duh  a])pre- 
ciating  tlieir  vahie.  They  combine  in  a  singular  manner, 
the  ai)])arent  anomalies  of  gallantry,  extravagance,  ])ro- 
fusioii  in  cxjM'iiditure,  indiff(M(;nce  to  the  future,  credulity 
vvhicli  is  easily  won,  and  confidence  which  is  readily  sur- 

'  As  to  cqnily  in  Admirally  see  Harden  v.  Gordon,  2  Mason's  R.  541. 

Brinrn  v.  Lull,  2  Sumner's R.  443.  Ellison  v.  Ship  Bcllona,  Bee's  R.  106. 

The  Nelson,  5  Rob.   Adin.  R.  227.  The  Pruuc  Frederick,  2  Ihig-   Adin. 
R.  394. 


44  ARTKl.F.S  — CONCLUSIVENESS  OF. 

prised.  Ilcucc  ii  is,  (IkU  haiiiaiiis  l)ctween  them  and 
sliip  owners,  (ill'  iaitcr  Ix'iiiii  |)('rsoiis  of  great  intelligence 
and  slut'wdiicss  in  Ixisincss,  are  deemed  open  to  much 
observation  and  scrutiny  :  lor  they  involve  great  inequality 
of  kno\\  ledge,  of  forecast,  of  power,  and  of  condition. 
Courts  of  Admiralty,  on  this  account,  are  accustomed  to 
consider  seamcMi  as  ])eculiarlv  cntithul  to  their  protection; 
so  that  they  have  been,  by  a  soniew  hat  bold  figure,  often 
said  to  l)e  favorites  of  Courts  of  Admiralty.  In  a  just 
sense,  they  are  so,  so  far  as  tlu;  maintenance  of  their 
rights,  aaid  the  protection  of  their  interests  against  the 
effects  of  the  superior  skill  and  shrewdness  of  masters  and 
owners  of  ships  are  concerned."' 

To  persons  accustomed  to  measure  rights  as  they  re- 
sult iVom  the  sharp  competitions  of  business,  or  by  the 
dry  and  technical  requisitions  of  the  common  law,  this 
language  may  sound  strangely ;  for  they  will  not  readily 
see,  why  the  moral  or  social  j)eculiarities  of  any  class  of 
men,  should  entitle  them  to  stand  before  a  court  of  Justice 
U])on  any  footing  other  than  the  exact  terms  of  the  obli- 
gation which  they  have  once  stipulated  to  perform.  Yet 
similar  inequalities  are  regarded,  with  the  same  effect,  in 
other  courts  dealing  with  other  contracts ;  ^  and  it  may 
be  said  that  to  overlook  them  entirely,  or  to  want  the 
power  of  giving  them  some  effect,  would  not  be  a  credit- 
able feature  of  an  enlightened,  liberal,  and  Christian 
jurisprudence. 

In  the  s])irit  of  this  policy,  it  has  been  held  by  the 
Courts  of  Admiralty,   that  whenever  any  stipulation  is 

'  Brown  v.  Lull,  2  Sumner's  R.  449. 

'  As  the  cases  of  heirs  dealing  for  their  expectancies,  and  remainder-men 
for  their  reversions.     See  Story's  Com.  on  Equity,  sec.  331  to  sec.  340. 


ARTICLES  — CONCLUSIVENESS   OF.  45 

found  in  the  shipping  articles,  which  derogates  fi'om  the 
general  rights  and  privileges  of  seamen,  it  is  void,  as 
founded  upon  imposition,  or  an  undue  advantage  taken 
of  their  necessities  and  ignorance  and  improvidence,  un- 
less two  things  concur :  first,  that  the  nature  and  opera- 
tion of  the  clause  is  fully  and  fairly  explained  to  the  sea- 
men ;  and  secondly,  that  an  additional  compensation  is 
allowed,  entirely  adequate  to  the  new  restrictions  and 
risks  imposed  upon  them  thereby.* 

But  on  the  other  hand,  where  there  is  no  circumven- 
tion or  misapprehension,  and  the  mariner  may  be  sup- 
posed to  have  known  and  understood  the  contract,  the 
courts  will  uphold  it.  If  the  construction  be  doubtful, 
the  court  will  lean  in  favor  of  the  mariner.  But  if  it  ap- 
pears that  the  meaning  of  the  contract  is  not  doubtful, 
and  that  the  mariner  knew  its  effect,  the  fair  interests  of 
the  ship  owner  will  be  protected,  even  though  the  special 
clause  may  abridge  a  seaman  of  some  general  right.  Thus 
in  Eni:;land,  it  is  conmion  in  the  Baltic  trade,  to  insert  a 
stipulation  in  the  articles,  to  this  effect :  "  Should  the  ves- 
sel winter  abroad,  on  account  of  the  ice,  the  officers  and 
men  agree  to  accept  half  wages  during  the  time  of  deten- 
tion." In  a  recent  case  of  this  kind,  where  it  was  proved 
to  be  the  usage  of  the  trade  between  England  and  the  Bal- 
tic ports,  and  to  be  the  general  usage  of  other  countries, 
to  j)ay  but  half  wages,  in  such  circumstances ;  and  that 

«  Brown  V.  Lull,  2  Sumner's  R.  449.  The  Juliana,  2  Dodson's  Adm.  R. 
504.  Harden  v.  (Gordon,  2  Mason's  R.  541,  556,  557.  2  Kent's  Com.  193. 
If  courts  of  law  are  not  al)le  to  alVord  lliis  relief,  as  it  seems  from  tlic  cases 
of  Applfby  V.  DoJs,  (8  East,  300,)  and  Jesse  v.  Roy,  (1  Cronip.  Jerv.  and 
Rose.  R.  316,  329,  339,)  they  are  not,  it  is  not  that  they  are  insensible  of 
the  necessity  for  it,  but  because  it  isout  of  their  jurisdiction  to  administer  it. 


-U)  AKTICLKS  — CONCLi;.Sl\ENi:.SS   OF. 

e;iMi(M'aIIv  siicli  ;i  siij)iilatioii  forms  pari  of  llic^  mariner's 
contrart  iijh)!!  lialtic  voyaiii's,  the  \\\<^\\  Court  of"  Admiralty 
sa^^  no  reason  lo  think  that  the  contract  was  signed  witli- 
out  a  knou  lediic  of  its  elVect,  and  sustained'it.^ 

AiiotlKM-  imjiortaiit  rule  is,  that  wherever  any  stijmla- 
liou  ill  the  articles  is  contrary  lo  the  ])oliey  of  a  statute, 
it  is  void.-  Under  these  principles,  the  conclusiveness  of 
the  contract  will  he  readily  ascertained.  As  to  the  par- 
ties, the  shi])pin»  articles  constitute  a  part  of  the  docu- 
ments of  the  ship  for  the  voyage,  and  are  prima  facie 
evidence  in  respect  to  the  contracts  of  all  persons  named 
therein ;  so  that  in  any  controversy  between  the  master 
and  owner,  they  are  as  much  evidence  of  the  contract  be- 
tween  them,  as  they  are  betw'een  the  seamen  and  the 
owner.^ 

The  shi])])in2;  articles  are  conclusive  evidence  of  the 
voyage,  under  the  rides  of  construction  above  stated.  No 
instance  is  recollected  w'here  parol  evidence,  or  any  other 
means  than  the  settled  rules  of  construction,  have  been 
resorted  to,  to  ascertain  the  voyage  described  in  the  con- 
tract. But  it  seems  that  the  seaman  may  show  by  parol 
evidence,  that  a  different  voyage  was  represented  to  him 
at  the  time  of  signing,  and  not  the  voyage  described  in 
the  paper."*  So  too,  he  may  show  that  the  articles  have 
been  altered  by  the  master,  since  they  were  executed.* 

In  regard  to  wages,  the  articles  are  conclusive  as  to  the 


'   The  Hoghion,  3  Hag.  Adm.  R.  100. 

*  Harden  v.  Gordon,  2  Mason's  R.  541. 
=■  Wtllard  V.  Dorr,  3  Mason's  R.  161. 

*  Murray  v.  Kellogg,  9  Johns.  R.  227. 

*  The  Eliza,  1  Hag.  Adrn.  R.  1S2.    See  also  Act  U.  S.  20th  July,  1840,  ch. 
23,  sec.  4. 


ARTICLES  — CONCLUSIVENESS   OF.  47 

terms  of  the  engagement ;  and  no  remuneration  can  be 
recovered  bevond  that  specified,  even  though  upon  an  ex- 
press promise,  for  duty  however  severe,  performed  in  the 
same  capacity^  But  if,  from  circumstances,  the  capacity 
in  which  the  seaman  acts  be  altered  during  the  voyage, 
as  if,  bv  the  death  or  dismissal  of  the  chief  mate,  the 
second  mate  succeed  to  his  place  and  perform  his  du- 
ties—  in  that  case,  the  former  contract  is  superseded,  and 
a  new  engagement  is  formed,  either  expressly  or  by  im- 
plication, for  the  new  service,  entitling  the  party  to  an 
altered  rate  of  remuneration.^ 

Where  the  articles  have  been  signed  and  delivered  to 
the  master,  and  the  amount  of  wages  is  omitted  by  mis- 
take or  accident,  without  fraud,  it  is  competent  to  either 
party  to  show  by  parol  testimony  what  the  contract  was 
in  relation  to  wages.^ 

>  Bartlett  v.  Wyman,  14  Johns.  R.  260.  Johnson  v.  Dallon,  1  Cowen's 
R.  543.  Vtacock  v.  iWCall,  Gilpin's  R.  305.  White  v.  Wilson,  2  Bos.  and 
Pul.  116.  The  Isabella,  2  Robinson's  Adni.  R.  241.  It  seems,  that  in  re- 
spect to  the  wages  of  the  master  and  his  apprentice,  the  articles  are  open 
to  be  controverted,  though  they  are  to  be  taken  as  prima  facie  importing 
verity.      Willard  v.  Dorr,  3  Mason's  R.  161. 

*  The  Providence,  1  Hag.  Adm.  R.  391.  The  Gondolier,  3  Hag.  Adm. 
R.  190.  Whether  additional  benefits  and  privileges,  beyond  the  amount 
of  the  wages  specified  in  the  articles,  can  be  recovered  on  parol  evidence, 
seems  to  be  doubtful.  In  an  early  case  in  the  District  Court  of  the  United 
States  for  the  District  of  Pennsylvania,  it  was  considered  tiiat  the  articles 
contemplated  by  the  statute  did  not  require  these  additional  grants  to  be  in- 
serted ;  and  that  parol  evidence  might  be  given.  {Parker  v.  The  Calliope, 
Peters's  Adm.  R.  272.)  In  a  more  recent  case,  in  the  same  court,  the  con- 
trary has  been  held.  (  Ftr/cof/i  V.  A/' Ca//,  Gilpin's  R.  305.)  Lord  Stowell 
refused  it  in  Tim  hahilln,  2  Rob.  241.  As  to  extra  rewards,  that  may  be 
earned,  of  the  nature  of  salvage,  see  post. 

'  Wickliam  v.  Dlight,  Gilpin's  R.  452.  See  also  The  Providence,  1  Hag. 
Adm.  R.  391.  The  Harvey,  2  Hag.  Adm.  R.  79.  The  Prince  George,  3 
Hag.  Adm.  R.  376. 


48  ARTICLCS  — CONCLUSIVENESS   OF. 

Piirsuiinl  to  the  rule  of  conclusiveness  in  rcsjiect  to  the 
wap's  named  in  the  contract,  it  \\as  liekl  in  the  District 
Court  lor  Penns>lvania,  in  the  latter  part  of  the  last 
century,  ili.u  no  ihaiii;c  of  political  events  aflecting  the 
risk  of  the  vovaac-.  as  a  change;  from  war  to  peace,  would 
authorize  a  rediK  tion  of  the  wages  agreed  to  be  paid, 
whatever  dilVerence  there  might  be  between  the  cus- 
tomarv  war  and  peace  wages.^ 

By  the  Act  of  Congress,  passed  the  20th  of  July,  1840, 
it  is  made  the  duty  of  the  owners  of  every  vessel  bound 
on  a  foreign  voyage,  "  to  obtain  from  the  collector  of  the 
customs  of  the  district  from  which  the  clearance  is  made, 
a  true  and  certified  copy  of  the  shipping  articles,  contain- 
ing the  names  of  the  crew,  which  shall  be  written  in  one 
uniform  hand,  without  erasures  or  interlineations."^  The 
third  section  declares  that  "  these  documents,"  (the  list 
of  the  crew  and  the  shi])ping  articles,)  "  lohich  shall 
he  deemed  to  contain  all  the  conditions  of  contract  with 
the  crew  as  to  their  service,  pay,  voyage,  and  all  other 
tilings,  shall  be  })roduced  by  the  master,  and  laid  before 
any  consul,   or  other  commercial   agent  of  the  United 


1  M'Culloch  V.  The  Lethe,  Bee's  Adm.  R.  423;  and  Shmv  v.  The  Lethe, 
Bee's  Adm.  R.  424.  Jn  these  cases,  the  ship  had  sailed  on  the  voyage,  and 
was  abroad  when  peace  took  place.  In  a  subsequent  case,  the  ship  had 
fallen  down  the  river  from  the  port  of  Philadelphia,  in  January,  1783,  and 
did  not  clear  the  Capes,  so  as  to  enter  on  the  liigh  seas,  before  the  20th  of 
March  following:  peace  was  declared  on  the  3d  of  March  ;  and  the  same 
judge  held  that  customary  peace  wages  only  ought  to  be  paid,  after  the  de- 
claration of  peace,  inasmuch  as  the  risk,  which  was  the  consideration  of 
the  excess  of  wages  in  time  of  war,  over  wages  usually  paid  in  time  of 
peace,  never  was  incurred.  I  confess  that  I  do  not  feel  the  force  of  the 
reasoning  on  which  the  case  was  thus  distinguished  from  its  predecessors. 
See  Brice  el  at.  v.  The  Nancy,  Bee's  Adm.  R.  429. 

'  Act  U.  S.  20th  July,  1840,  ch.  23,  sec.  2. 


ARTICLES  — MUST   CO^JTAIN   JNAMES   OF   CREW.  49 

States,  whenever  he  may  deem  their  contents  necessary 
to  enable  him  to  discharge  the  duties  imposed  upon  him 
by  law  toward  any  mariner  applying  to  him  for  his  aid 
or  assistance-"^  "  All  interlineations,  erasures,  or  writing 
in  a  hand  different  from  that  in  which  such  duplicates 
were  originally  made,  shall  be  deemed  fraudulent  altera- 
tions, working  no  change  in  such  papers,  unless  satisfac- 
torily explained  in  a  manner  consistent  with  innocent 
purposes,  and  the  provisions  of  law  which  guard  the 
rishts  of  mariners."'^ 

If  a  mariner  is  shipped  in  a  foreign  port,  the  Act  re- 
quires that  the  master  "  shall  forthwith  take  the  list  of  his 
crew  and  the  duplicate  of  the  shipping  articles  to  the 
consul,  or  person  who  discharges  the  duties  of  the  office 
at  that  port,  w  ho  shall  make  the  proper  entries  thereon, 
setting  forth  the  contract,  and  describing  the  person  of 
the  mariner ;  and  thereupon,  the  bond  originally  given 
for  the  return  of  the  men  shall  embrace  each  person  so 
shipped."^  The  Act  further  declares  that  "  if  any  master 
of  a  vessel  shall  proceed  on  a  foreign  voyage,  without  the 
documents  herein  required,  or  refuse  to  produce  them 
when  re{jnired,  or  to  perform  the  duties  imposed  by  this 
Act,  or  shall  violate  the  provisions  thereof,  he  shall  be 
liable  to  cacli  and  every  individual  injured  thereby,  in 
damages,  and  shall,  in  addition  thereto,  be  liable  to  pay 
a  fine  of  one  hundred  dollars  for  each  and  every  offence, 
to  be  recover((l  l)\  ;iiiv  person  suing  therefor  in  any  court 
of  till'  I  iiited  States  in  tiic  district  where  such  delin(|ueiit 
may  reside  or  be  found.'"     An}   consul  or  connnercial 

'  Act  U.  S.  20lh  July,  1340,  ch.  23,  sec.  3. 

*  lb.  sec.  4.  '  lb.  sec.  8. 

*  lb.  sec.  19.     This  Act  applies  to  vessels  which  sailed  from  any  port 

7 


50  CO.NTKACT  — WIIF.N    lU    TAIU^L. 

ai!;ont  noiiloctine;  or  omiitiiii;  to  perform,  seasonably,  the 
(liitii's  im|)()S(>{l  l)v  the  Act,  or  guilty  of  nuilversation  or 
abuse  ol  power,  is  made  liable  to  any  person  for  all  dam- 
aiif  oeeasioned  thereby  ;  and  for  any  malversation  or  eor- 
rupt  conduct  in  ofliee,  he  is  made  liable  to  indictment 
and  a  iiiie  of  from  one  to  ten  thousand  dollars.^ 

IV.  The  situation  of  parties  not  executing  any  writ- 
ten contract. 

In  order  the  more  effectually  to  ensure  the  execution  of 
a  Avritten  contract,  the  statute  of  1790  provided,  that  if 
anv  master  or  commander  upon  a  foreign  voyage,  shall  carry 
out  anv  seaman  or  mariner,  (except  apprentices  or  servants 
to  himself  or  owners,)  without  the  contract  or  agreement 
before  designated  being  first  made  and  signed  by  the  sea- 
men or  mariners,  such  master  or  commander  shall  pay  to 
every  such  seaman  or  mariner  the  highest  price  or  wages 
which  shall  have  been  given  at  the  port  or  place  where 
such  seaman  or  mariner  shall  have  been  shipped,  for  a 
similar  voyage,  within  three  months  next  before  the  time 
of  such  shij)ping:  Provided^  such  seaman  or  mariner 
shall  jxuform  the  voyage  ;  or  if  not,  then  for  such  time 
as  he  shall  continue  to  do  duty  on  board  ;  and  shall  more- 
over forfeit  twenty  dollars  for  every  such  seaman  or  mari- 
ner :  and  such  seaman  or  mariner,  not  having  signed  such 
contract,  is  declared  not  to  be  bound  by  the  regulations, 
nor  subject  to  the  penalties  and  forfeitures  contained  in 
the  Act.^  It  seems,  then,  that  the  seaman  who  does  not 
sign  articles,  partakes  in  none  of  the  regulations,  and  is 

of  the  United  States  from  and  after  the  first  day  of  October  in  the  year 
1840. 

'  ActU.  S.  20ih  July,  1840,  ch.  23,  sec.  18. 

»  ActU.  S.  1790,  ch.  56,  s.  1. 


CONTRACT  — WHEN    BY   PAROL.  51 

not  subject  to  the  penalties  and  forfeitures  enacted  in  this 
statute.  But  it  has  been  held  that  he  is  not  outlawed,  and 
left  without  any  control ;  his  contract  is  made  under  the 
general  maritime  law,  and  he  is  subject  to  all  penalties 
and  forfeitures  incurred  under  that  law,  where  it  is  either 
concurrent  with,  or  not  contradicted  by,  the  statute  law  ; 
he  is  to  be  supplied  with  medicines,  paid  his  wages,  and 
dealt  with  in  all  respects  as  if  the  statute  were  not  made, 
except  that  he  is  to  be  paid  according  to  the  rate  therein 
designated.^ 

The  statute  of  1840  declares  that  "all  shipments  of 
seamen,  made  contrary  to  the  provisions  of  this  and  other 
acts  of  Congress,  shall  be  void  ;  and  any  seaman  so 
shipped  may  leave  the  service  at  any  time,  and  demand 
the  highest  rate  of  wages  paid  to  any  seaman  shipped 
for  the  voyage,  or  the  sum  agreed  to  be  given  him  at  his 
shipment.^ 

'  See  Jameson  v.  The  Regulus,  1  Peters's  Adm.  R.  212.  In  a  note  to  this 
case  it  is  intimated,  that,  although  the  Act  requires  the  highest  price  of 
■wages,  &c.  to  be  paid,  if  a  contract  be  not  signed,  yet  evidence  may  be 
given  of  a  verbal  agreement  for  a  less  sum.  The  reverse  of  this  has  been 
held  in  a  very  late  case  in  the  District  Court  of  the  United  States  for  Maine 
District,  in  which  it  has  been  held  that  if  the  voyage  is  within  the  statute, 
the  seaman  shipped  on  a  verbal  agreement  is  entitled  to  the  highest  rate 
of  wages  paid  at  the  port  where  he  shipped,  and  parol  evidence  is  inad- 
missible to  prove  that  a  lower  rate  of  wages,  or  a  dill'ereut  mode  of 
compensation  was  agreed  upon.  The  Crusader,  Ware's  R.  437.  See  also 
Story's  Notes  to  Abbot  on  Shipping,  p.  434.  It  has  been  doubted  whether 
a  seanjan,  not  having  signed  articles,  is  included  in  the  provision  of  the 
statute  relative  to  ships  not  seaworthy.  This  seems,  in  terms,  to  contem- 
plate only  articled  seamen  ;  because  when  designating  the  penalty  on  a  re- 
fusal to  proceed,  the  mariner  is  to  be  imprisoned  "  until  he  shall  have  paid 
double  the  sum  advanced  to  him  at  the  lime  of  subscribing  the  contract  for 
the  vnyaire."     See  Jameson  v.  The  Regulus,  1  Peters's  Adm.  II.  212,  note. 

»  Act  U.  S.  2Uih  July,  IblO,  ch.  23,  sec.  10. 


52  CONTRVCT— \VUr.\    HY   PAROI, 


TluMO  is  ;m  obvious  discropancv  botwoou  those  two 
provisions,  mid  at  the  same  (iiiu;  tlu;  latter  Act  docs  not 
c.\|)icssl\  rcj)cal  tlic  lormcr.  The  situation  of  a  seaman, 
who  ships  under  a  parol  contract,  is  now  materially  dif- 
ferent iVom  what  it  was  under  the  old  statute ;  and  so 
far  as  the  provisions  of  the  new  are  inconsistent  with 
those  of  the  old  Act,  the  latter  are  to  be  considered  as 
repealed.  They  are  inconsistent  in  these  particulars  ; 
that  whereas  under  the  Act  of  1790,  the  first  penalty,  or 
inconvenience,  to  which  the  master  was  subjected  for 
sliii)i)ing  a  seaman  by  parol,  was  that  the  seaman  might 
demand,  for  as  long  a  time  as  he  did  duty  on  board,  the 
highest  rate  of  wages  which  had  been  given  at  the  port, 
for  a  similar  voyage,  within  the  three  months  preceding; 
then  follows  a  further  j)enalty  of  twenty  dollars,  for  each 
seaman  or  mariner  so  shipped.  By  the  new  Act,  the 
seaman  may  (juit  the  service  of  the  ship  at  any  time  ; 
that  is  to  say,  a  desertion  does  not  forfeit  his  wages;  and 
he  may  demand  —  not  the  highest  rate  of  wages  paid  at 
the  port  within  three  months — but  the  highest  rate  paid 
to  any  seaman  shij)ped  for  the  voyage,  or  he  may  content 
himself  with  showing  what  the  parol  agreement  was,  and 
take  the  rate  of  wages  for  which  he  shi])ped.  The  for- 
feiture by  the  master  of  twenty  dollars  for  each  seaman 
or  mariner  shipped  by  parol,  remains  as  before. 

The  Act  of  1 840  also  declares  that  shipments  of  sea- 
men made  contrary  to  the  provisions  of  this  and  other 
Acts  of  Congress,  shall  be  void.  This  cannot,  it  is  pre- 
sumed, be  intended  to  mean  that  the  manner,  who  has 
shipped  under  a  parol  contract,  is  not,  as  long  as  he  re- 
mains on  board,  bound  to  do  duty,  as  he  would  be  by  the 
general  marine  law.      It  means,  as  appears  by  the  con- 


ARTICLES  — SPECIAL   CLAUSES.  53 

text,  that  the  mariner  may  leave  the  service  at  any  time, 
the  contract,  by  wliich  he  entered  that  service,  being 
void  ;  and  that  the  terms  of  shipment  are  not  binding 
upon  him.  But  it  cannot  be  presumed  to  have  been  the 
intention  of  the  Legislature,  that  a  mariner,  however  he 
mavhave  been  shipped,  should  have  it  in  his  power,  in  a 
time  of  extreme  peril,  to  refuse  all  duty,  or  to  do  any 
other  act  inconsistent  with  the  relation  of  a  mariner  to 
the  master.^ 

Some  strictures  upon  the  special  clauses  that  are  often 
found  in  shipping  articles  may  here  merit  the  attention  of 
commercial  persons.^ 

'  See  the  case  of  Jameson  v.  The  lirgulus,  ante,  in  reference  to  the  for- 
mer Act.  The  Act  of  1840  took  effect  upon  contracts  made  on  and  after 
the  first  day  of  October,  1840. 

*  "A%  to  tlie  present  structure  of  these  instruments,"  observed  Lord 
Stowell,  "  it  would  take  me  up  a  very  inconvenient  time  to  point  out  lialf 
the  imperlinencies  with  which  it  is  stuffed,  and  which  it  is  high  time  should 
be  corrected."  Many  decisions  have  been  pronounced  by  our  courts  upon 
special  provisions  controlling  the  rights  of  seamen  ;  s^me  of  these  provisions 
have  repeatedly  been  declared  void  :  and  yet  I  observe  that  the  same,  or 
similar  objectionable  clauses  are  still  retained  in  the  instruments  in  com- 
mon use  in  some  of  our  ports  whose  commercial  and  professional  classes 
rank  as  high  m  intelligence  and  cultivation,  as  any  in  this  country.  I  allude 
more  particularly  to  my  own  ciiy.  The  Boston  shipping  articles,  sold  by 
the  stationers  and  used  by  the  merchants,  contain  at  least  three  clauses  that 
are  of  more  lh;m  questionable  validity.  One  of  these  is  a  stipulation  that 
the  ship  shall  not  be  chargeable  with  the  expenses  of  nursing  and  boarding 
on  shore,  incurred  by  a  sick  seaman.  As  long  ago  as  the  year  1823.  a 
similar  clause  was  pronounced  in  the  Circuit  Court  of  the  United  States 
for  the  First  Circuit  to  be  invalid,  as  being  repugnant  to  the  general  law, 
and  more  especially  because  it  contravened  the  manifest  policy  of  the  Act 
of  Congress.  "  Tlie  law,"  observed  Mr  Justice  Story,  "will  work  its  way 
through  every  such  contrivance."  [Harden  v.  Gordon,  2  Mason's  R.  541.) 
The  second  of  these  clauses  is  a  provision  that  no  reinstatement  of  a  uKirincr 
shall  purge  a  forfeiture  of  wages  antecedently  incurred  ;  concerning  wliicli, 
J  have  no  iiesilalion  in  declaring  my  professional  l)elief,  that  no  ("ourt  of 


54  AKTKLKS  — SPIX'IAL   CLAUSES. 

The  equitable  rule  of  ihe  niaiitinic  law,  hy  which 
freight  is  made  to  i^eneratc?  wages,  has  often  been  at- 
tempted  to  be  ammlled   by  the  introduction  of  such  a 

Ailmiralty,  and  probably  no  other  Court,  would  give  the  effect  intended,  to 
a  provision  so  repugnant  to  the  principles  of  the  maritime  law,  and  which 
really  enervates  good  discipline,  by  driving  the  party  to  desperate  terms. 
(See  The  Mentor,  4  IMason's  R.  84.)  The  third  clause  to  which  I  refer, 
provides  that  parol  evidence  of  absence  or  desertion  may  be  given  at  any 
trial  between  the  parties,  "  ani/  act,  laiv,  or  usage  to  the  contrary  thereof  not- 
inthstanding."  This  provision  is  entirely  without  meaning ;  for  if  the 
object  be  to  affect  the  party  in  "  any  trial,"  with  the  forfeiture  of  wages 
declared  by  the  statute,  this  can  only  be  done  by  complying  with  the 
statute,  and  showing  the  entry  in  the  log-book ;  which  is  the  proof  required 
by  law.  But  if  the  object  be  to  set  up  a  forfeiture  under  the  general  mari- 
time law  for  absence  or  desertion,  this  can  as  well  be  done  without  the 
clause  as  with  it.  The  clause,  however,  seems  to  disclose  its  own  object; 
which  I  lake  to  be  to  evade  the  statute,  and  give  the  master  or  owner 
the  benefit  of  the  statute  forfeiture,  by  means  of  parol  proof,  "  any  act,  law, 
or  usage  to  the  contrary  thereof  notwithstanding  "  :  to  which  end,  I  also  take 
the  clause  to  be  perfectly  void.  (See  Cloulman  v.  Tvnison,  1  Sumner's 
R.373;  Snellv.  The  Indeperidence,  Gilpln'sR.  140;  Woudv.  the  Nimrod,lh. 
S3;  Knagg  v.  Goldsmith,  lb.  207;  The  Rowena,  Ware's  R.  309.)  I  am  at 
a  loss  to  conceive,  how  such  clauses  as  these  have  been  retained,  after  lights 
and  materials  have  so  long  been  made  known  for  reforming  the  general 
structure  of  this  instrument.  It  has  been  suggested  that  they  are  probably 
retained  in  terrorem,  and  that  masters  and  owners  find  their  account  in 
preserving  these  stipulations,  although  they  may  be  themselves  aware  of 
their  invalidity,  in  the  diminution  of  the  claims  likely  to  be  made  upon  them 
at  the  end  of  the  voyage.  Whether  this  be  the  case,  or  whether  they  are  re- 
tained as  the  yet  uncorrected  mistakes  of  former  ignorance,  it  is  but  too  ob- 
vious to  remark,  that  it  is  little  creditable  to  persons  so  munificent  and  intelli- 
gent as  our  commercial  classes,  to  make  use  of  attempts  to  evade  the  positive 
commands  of  the  Legislature  in  favor  of  mariners,  which  are  at  the  same 
time  perfectly  incompetent  to  effect  the  intended  evasion.  The  reformation 
of  this  contract,  however,  can  best  be  effected  by  Congress,  who  would,  it  is 
respectfully  suggested,  do  well  to  follow  the  example  set  by  a  late  English 
Statute,  in  which  a  very  neat  and  sufficient  contract  is  given,  the  form  of 
which  is  required  to  be  used  uniformly  throughout  the  United  Kingdom. 
(See  The  Appendix.)  There  is  also  a  very  frequent  practice  of  taking  the 
seaman's  receipt,  comu»only  in  a  form  printed  on  the  shipping  articles,  of  a 


ARTICLES  — SPECIAL   CLAUSES.  55 

clause  into  the  articles  as  the  following  :  "  That  in  case  of 
the  said  vessel  beine;  taken  or  lost  in  the  course  of  the  said 
voyage,  no  wages  shall  be  demanded  or  received  by  the 

sura,  in  discharge  of  the  wages  due  to  him,  and  also  of  a  further  sum,  in 
discharge  of  all  claims  and  demands  for  assaults  and  batteries  and  imprison- 
ments ;  and  I  have  seen  some  of  these  releases,  which,  with  studied  com- 
pleteness, sweepingly  exonerate  the  vessel,  master  and  owners  from  "every 
other  matter  and  thing,  of  whatever  name  or  nature,"  and  are  then  executed 
under  seal.  It  is  certainly  time  that  the  effect  of  a  seaman's  receipt  were 
fully  understood  by  ship  owners  and  ship  masters.  The  practice  of  print- 
ing the  receipt  for  wages  on  the  back  of  the  articles  is  commendable ;  it 
furnishes  a  convenient  mode  of  preserving  the  receipt  itself,  and  when  veri- 
fied by  the  oath  of  the  master,  it  is  received  in  the  Admiralty  Court  as 
evidence  of  the  amount  paid.  But  a  seaman's  receipt  of  all  demands,  like 
that  of  any  other  person,  is  not  conclusive;  it  is  open  to  explanation,  and 
upon  satisfactory  evidence  it  may  be  shown  that  more  was  due  than  is 
expressed  in  the  receipt,  or  that  less  money  was  paid  at  the  time,  or  that 
the  payment  was  made  by  the  master  in  the  shape  of  deductions  which  he 
had  no  right  to  make,  or  any  other  matter  may  be  shewn  which  proves 
that  the  receipt  is  not  in  point  of  fact,  a  full  and  entire  satisfaction  of  what 
it  purports  to  discharge.  (See  Harden  v.  Gordon,  2  Mason's  R.  561 ; 
Thomas  v.  Lane,  2  Sumner's  R.  11  ;  The  David  Pratt,  Ware's  R.  495.) 
Nor  does  it  give  the  receipt  any  new  binding  force,  which  the  Admiralty 
Courts  cannot  set  aside,  to  have  it  executed  with  a  seal.  "  A  receiptor  re- 
lease of  a  seaman,"  says  Judge  Ware,  "  I  hold  to  be  no  bar  in  the  Admiralty 
to  a  suit  for  his  wages,  with  whatever  parade  of  seals  and  attesting  wit- 
nesses it  may  be  surrounded,  provided  it  is  proved  that  they  have  not  been 
paid  or  otherwise  satisfied."  If  indeed,  the  legal  rights  of  a  seaman,  at  the 
time  of  making  a  settlement,  be  doubtful,  and  are  honestly  contested  by  the 
other  side,  and  time  and  opportunity  are  afforded  him  to  satisfy  himself 
upon  the  matter  in  dispute,  and  he  finally  agrees  to  compromise,  and  to 
accept  less  than  in  strictness  he  might  be  entitled  to,  the  Court  will  liold 
him  bound  by  the  receipt  which  he  gives.  {Thompson  v.  Faussat,  Peters's 
Circ.  C.  R^.  \h2.)  In  respect  to  releases  for  assaults  and  batteries,  impris- 
onments or  other  trespasses,  they  are  not  a  bar  to  a  suit  for  such  trespasses, 
whether  they  are  expressed  for  a  nominal  consideration  of  one  cent,  or  for  a 
consideration  of  larger  amount,  unless  a  distinct  compromise  or  satisfac- 
tion for  such  trespasses  was  made,  or  unless  something  like  a  real  compen- 
sation was  paid.  (Thomas  v.  Lane,  ut  supra  ;  The  David  Pratt,  ut  supra.) 
The  better  practice  would  be  for  masters  n(jt  tu  take  such  a  formal  receipt 


66  AUTICI.F.S  — Sn-.CIAI.   CLAUSES. 

siibscM-iliors,  o\(oj)t  tlio  advanco  waf^es  received  hy  them 
resj)(^ctivrlv,  at  \\\v.  Uiuv  of  vuUy  on  board;  and  if  the 
said  sliij)  shall  he  restrained  for  more  than  tliirty  dajs  at 
any  one  time,  the  wages  shall  eease  dming-  such  restraint 
and  no  longer.'"  Similar  sti[)ulations  have  come  under 
the  notice  ol  the  courts  in  England  and  Scotland,  and  in 
this  coinitry  ;  and  the  state  of  the  question  upon  them 
has  reached  nearly  the  same  result.  In  England,  the 
courts  of  common  law,  feeling  bound  by  the  express  con- 
vention of  the  parties,  have  given  to  these  clauses  the 
effect  intended,  although  the  vessel  had  earned  freight 
on  one  or  more  outward  or  intermediate  voyages.^  But 
the  Court  of  Admiralty,  keeping  in  view  the  fact,  that, 
in  a  divided  voyage,  cargoes  successively  taken  in  and 
delivered  at  different  ports,  earned  freight  for  the  owners, 
held  that  they  also  earned  wages  for  the  mariners  ;  and 
Lord  Stowell,  in  jironouncing  this  conclusion,  declared 
that  the  Admiralty  Court  would  not  uj)hold  any  contract 
by  ^\  hich  they  were  not  to  be  entitled  to  any  part  of  their 
wages,  unless  the  ship  returns  to  her  last  port  of  dis- 
charge.^    In   Scotland,  similar  clauses  were  strongly  re- 

from  all  the  crew,  both  those  who  have  grounds  of  complaint,  and  those  who 
have  not,  for  this  only  weakens  the  force  of  the  release  when  it  comes  to  be 
relied  on  in  particular  cases ;  but  to  make  a  distinct  compromise  with  each 
seaman  asserting  any  considerable  grounds  of  complaint,  and  to  pay  him 
something  which  the  master  can  shew  he  was  willing  to  receive  and  did 
receive  as  an  adequate  compensation. 

'  This  is  the  clause  that  came  under  the  notice  of  the  court  in  Brown  v. 
Lvll,  (2  Sumner's  R.  443.)    I  cite  it  as  the  latest  invention  of  its  kind. 

*  Apphhy  v.  Dods,  8  East  R.  300.     Jesse  v.  Roy,  4  Tyrw.  626. 

'  The  Juliana,  2  Dods.  Adm.  R.  504.  This  decision  apparently  created 
some  surprise  among  those  branches  of  the  profession  not  accustomed  to 
keep  in  view  the  equity  power  of  the  Court  of  Admiralty.  "  However,  as 
lawyers,  we  may  dissent  from  the  conclusion,"  observes  an  able  writer  in 


ARTICLES  — SPECIAL   CLAUSES.  57 

probated  by  the  courts,  and  Mr.  Bell  seems  to  have  con- 
sidered that  they  would  operate  merely  as  a  postj)onement 
of  the  time  of  payment,  and  not  as  a  limitation  of  the 
right. ^  But  these  clauses  have  now  met  the  attention  of 
Parliament,  and  have  been  expressly  declared  invalid.^ 

In  our  own  courts,  the  earliest  case  upon  these  inequi- 
table agreements,  now  in  print,  occurred  in  the  Admiralty 
Court  in  Pennsylvania.  It  was  agreed  in  the  articles 
*'  that  no  officer  or  seaman  shall  demand  or  be  entitled  to 
his  wages,  or  any  part  thereof,  until  the  arrival  of  the  said 
ship  at  the  above  mentioned  port  of  discharge  in  Phila- 
delphia:" the  ship  was  captured  on  her  return  voyage; 
and  certainlv  no  terms  of  contract  could  more  forcibly 
imply  that  with  such  capture,  all  right  to  wages  w^as  ex- 
tinct. But  the  court  held,  that  the  clause  was  to  he  con- 
strued as  controlling  the  general  right  only  as  to  the  time 
and  place  of  payment,  which  was  to  be  at  Philadel])hia, 
in  a  common  course  of  events  ;  but  that  the  arrival  of  the 
ship  was  not  guaranteed  by  the  mariner,  and  it  being 
prevented  by  a  casualty  not  under  his  control,  he  was  to 
be  paid  wages  as  far  as  the  owners  had  received  freight, 
that  is,  to  the  outward  port,  and  for  half  the  period  of  the 


the  Law  Magnzinc,  (vol.  xiv.  p.  325,)  "it  is  impossible,  as  men,  to  find 
fault  with  it."  Wl)ullier  or  not  it  was  an  assumption  of  jurisdiction  not 
warranted  by  tbe  constitution  of  the  English  Courl  of  Admiralty,  tbe  prin- 
ciple of  ibe  decision  has  been  carried  into  effect  by  the  Legislature,  in  llie 
late  admirable  statute,  as  will  appear  in  a  succeeding  note. 

'  Bell's  <'oin.  ch.  4,  sec.  1  and  4. 

•  "No  clause  in  tbe  agreement  whereby  a  seaman  shall  consent  to  fore- 
go the  rigbl  wliicb  tbe  maritime  law  gives  him  to  wages  in  tbe  case  of 
freight  earned  by  ships  siibserjuently  lost,  or  containing  any  words  to  that 
effeci,  shall  be  valid  or  binding  on  any  seaman  signing  the  same.''  Act  5 
and  C  Wra.  IV.  ch.  19,  sec  5. 

8 


58  AUTKi.Ks  — Hr.Qnur.i)  in  tiik  fishkkiks. 

sliip's  stay  at  siicli  port.'  Tlio  sam(3  }H)'mt  was  afterwards 
lu'Id  by  tlu'  Siij)rcine  Court  of  the  State  of  Massachusetts, 
u})on  a  s'unilar  agreement.-  But  tlie  (juestlon  in  relation 
to  tliese  clauses  has  been  fully  settled,  so  far  as  tiie  relief 
aflbrded  by  the  Admiralty  courts  is  concerned,  by  Mr. 
Justice  Story,  who  lias  placed  their  invalidity  upon  the 
broad  principles  of  inequality  and  unfairness,  before  stated, 
and  held  that  they  are  absolutely  void,  without  the  court 
is  satisfied  that  they  were  understood  and  assented  to  by 
the  mariners,  upon  an  adequate  additional  compensation 
for  the  risk  incurred.^ 

It  is  to  be  observed  that  the  statute  which  entitles 
everv  mariner  to  demand  and  receive  one  third  of  the 
wages  due  to  him  at  every  outward  port  of  delivery,  un- 
less the  contrary  be  expressly  stipulated  in  the  contract,^ 
has  reference  only  to  the  time  and  place  of  payment,  and 
does  not  contemplate  stipulations  by  which  wages  already 
earned  are  to  be  made  dependent  on  wages  that  are  not 
earned,  but  are  lost  by  casualties  not  affecting  the  former. 

As  respects  the  fisheries,  the  contract  of  the  seamen 
with  the  master  and  owner  is  also  required  to  be  in  writ- 
ing, in  the  bank  and  other  cod  fisheries,  containing  the 
terms  of  shipment,  the  proportion  of  the  proceeds  of  the 
voyage  that  is  to  belong  to  each  seaman,  and  expressing 
whether  the  voyage  is  to  continue  for  a  term  of  time,  or 
for  the  fishing  season.  The  agreement  is  to  be  indorsed 
or  countersigned  by  the  owner  of  the  vessel  or  his  agent.* 

'  Johnson  v.  The  Wallerstorff,  1  Peters's  Adm.  R.  215. 

*  Swift  V.  Clark,  15  Mass.  R.  173. 

*  Brown  v.  Lull,  2  Sumner's  R.  443. 

*  ActU.  S.  20th  July,  1790,  sec.  6. 

*  Act.  U.  S.  19lh  June,  1813,  ch.  2.     "  Be  it  enacted,  &c.,  that  the  mas- 


ARTICLES  — REQUIRED  IN  THE  FISHERIES.  59 

The  articles  do  not  determine  exclusively  who  are  the 
owners,  and  the  seamen  may  prove,  by  other  evidence, 
who  the  real  and  responsible  owners  are.'  The  object 
of  the  articles  is  to  place  the  fishermen's  contract,  and 
his  relation  to  the  vessel  and  owners  and  master,  upon 
the  same  footing  with  seamen  in  the  merchant  service ; 


ter  or  skipper  of  any  vessel  of  the  burthen  of  twenty  tons  or  upwards, 
qualified  according  to  law  for  carrying  on  the  bank  and  other  cod  fisheries, 
bound  from  a  port  of  the  United  States,  to  be  employed  in  any  such  fishery, 
at  sea,  shall,  before  proceeding  on  such  fishing  voyage,  make  an  agreement 
in  writing  or  print  with  every  fisherman  who  may  be  employed  therein, 
(except  only  an  apprentice  or  servant  of  himself  or  owner,)  and,  in  addition 
to  such  terms  of  shipment  as  may  be  agreed  on,  shall,  in  such  agreement, 
express  whether  the  same  is  to  continue  for  one  voyage  or  for  the  fishing 
season,  and  shall  also  express  that  the  fish  or  the  proceeds  of  such  fishing 
voyage  or  voyages,  which  may  appertain  to  the  fishermen,  siiall  be  divided 
among  them  in  proportion  to  the  quantities  or  number  of  said  fish  which 
they  may  respectively  have  caught;  which  agreement  shall  be  indorsed  or 
countersigned  by  the  owner  of  such  fishing  vessel  or  his  agent.  And  if  any 
fisherman,  having  engaged  liimself  for  a  voyage,  or  for  the  fishing  season, 
in  any  fishing  vessel,  and  signed  an  agreement  therefor,  as  aforesaid,  shall 
thereafter,  and  while  such  agreement  remains  in  force  and  to  be  performed, 
desert  or  absent  himself  from  such  vessel  without  leave  of  the  master  or 
skipper  thereof,  or  of  the  owner  or  his  agent,  such  deserter  shall  be  liable 
to  the  same  penalties  as  deserting  seamen  or  mariners  are  subject  to  in  the 
merchant  service,  and  may,  in  the  like  manner,  and  upon  the  like  com- 
plaint and  proof,  be  apprehended  and  detained;  and  all  costs  of  process  and 
commitment,  if  paid  by  the  master  or  owner,  shall  be  deducted  out  of  the 
share  offish,  or  proceeds  of  any  fishing  voyage,  to  which  such  deserter  had 
or  shall  become  entitled.  And  any  fisherman,  having  engngcd  himself  as 
aforesaid,  who  shall,  during  such  fishing  voyage,  refuse  or  neglect  his  pro- 
per duty  on  board  the  fishing  vessel,  being  thereto  ordered  or  required  by 
the  master  or  skipper  thereof,  or  shall  otherwise  resist  his  just  commands, 
to  the  hindrance  or  detriment  of  such  voyage,  besides  being  answerable  for 
all  damages  arising  thereby,  shall  forfeit,  to  the  use  of  the  owner  of  such 
vessel,  his  share  of  any  public  allowance  which  may  be  paid  upon  such 
voyage."     Sec.  1. 

'   Wail  v.  GMx,  4  Pick.  R.  293. 


GO  AUTiri.F.S  — IN  TllR   WH  M  K   FISTIF.RY. 

nnti  to  iiKikc  them  liable  to  the  same  restriclions  and  en- 
titlod  to  ilu'  siunc  remedies.'  We  have  already  seen  that 
the  seamen  on  these  voyages  are  not  partners  with  the 
owners.^ 

In  the  whah;  fishery,  no  statute  has  yet,  in  terms,  re- 
quired the  eontract  to  be  in  writing;^  but  the  invariable 
usage  of  that  trade,  and  in  fact  the  nature  of  the  con- 
tract, have  insured  the  universal  adoption  of  a  written 
agreement.  It  contains  a  description  of  the  voyage  ,' 
the  share,  or  hnj,  as  it  is  called,  of  each  officer  and  sea- 
man ;  a  stij)ulation  that  each  party  will  use  his  best  en- 
deavors to  accomplish  the  object  of  the  voyage;  and  cer- 
tain regulations  rendered  expedient  by  the  nature  of  the 
enterprise,  and  tlu^  character  of  the  islanders  in  those  dis- 
tant seas,  into  which  these  voyages  are  pushed,  where 
the  lawlessness  of  savage  life  tempts  the  nearly  equal 
lawlessness  of  men  Ion";  absent  from  the  restraints  and 
decencies  of  civilization,  and  renders  the  strong  arm  of 
authority  and  every  appeal  to  self-interest  necessary  to 
the  preservation  of  common  order  and  security."* 


'  Wait  V.  Gibbs,  ut  supra.  3  Kent's  Com.  p.  13S.  Act  U.  S.  19th  June, 
1813,  ch.  2,  sec.  1  and  2.  A  form  of  these  articles  will  be  found  in  the  Ap- 
pendix. 

*  Ante,  p.  13. 

'  A  whaling,  or  fishing  voyage,  has  been  held  not  to  be  a  "foreign 
voynjre,"  within  the  meaning  of  the  statutes  using  that  expression.  Taber 
v.  The  United  States,  C.  C.  U.  S.  for  Mass.  Oct.  1S39.  Mss.  This  case  will 
appear  in  4  Sumner's  R. 

*  The  whale  fishery  is  a  trade  conducted  with  much  method  and  system, 
and  is  carried  on  by  persons  of  great  intelligence,  as  well  as  enterprise.  So 
far  as  my  inquiries  have  extended,  the  whaleman's  shipping  paper  used  in 
the  port  of  New  Bedford,  is  the  best  conslruoted  instruinent  of  the  kind  in 
use  in  the  United  States.  Its  regulations  for  the  health  and  morals  and 
discipline  of  the  crew,  are  deserving  of  great  praise.     See  the  Appendix. 


CHAPTER  IV. 


OF      THE     DIFFERENT     FORMS     OF     THE     MARINER's      CON- 
TRACT. 


Four  various  modes  of  hiring,  or  compensating  the  ser- 
vices of  seamen,  have  been  practised  to  a  different  extent 
in  different  ages  and  countries.  Seamen  are  hired,  ^/\s^, 
by  the  voyage,  at  so  much  for  the  entire  period,  or  run  ; 
second^  for  the  voyage,  at  so  much  for  each  month  that 
the  voyage  shall  continue  ;  third,  for  a  certain  voyage,  at 
a  stipulated  share  of  the  profits  that  shall  be  realized  ; 
fourth,  for  a  certain  voyage,  at  a  stipulated  share  of  the 
freight  that  shall  be  earned.^  These  are  all  important  to 
be  examined  and  traced  to  the  sources  from  which  their 
principles  may  be  derived  ;  for  they  are  all,  under  one  or 
another  aspect,  in  use  at  the  present  day,  and  under  some 
of  them,  as  a  form  of  the  mariner's  contract,  vast  branches 
of  the  commercial  enterprise  of  this  country  are  now  con- 
ducted. 

These  different  forms  of  the  contract  divide  themselves 
into  two  classes  ;  the  two  first,  the  hiring  by  the  voyage 
and  by  the  month,  having  some  common  analogies,  con- 
stitute the  first  class  ;  and  the  two  last,  the  hiring  on  a 
share  of  the   profits,  or  of  the   freight,   being  analogous 

^  VOrd.  de  la  Marine,  liv.  3,  tit.  4,  art.  1.    Jacobsen's  Sea  Laws,  book  2, 
ch.  2.     Polhier,  Louagex  Mar.  n.  ICd. 


62  IIIIUN'C    RV  TlIK   VOYVr.E. 

throuiihoiit,  form  tho  second  class.  Contracts  of  tlio  first 
class  arc  strictly  contracts  of  hire;  those  of  tiie  second 
class  have  sometimes  been  said  to  constitute  a  species  of  co- 
partnership between  the  owners  and  the  mariners.^  What 
degree  of  accuracy  there  is  in  this  description  of  the  lat- 
ter branch  of  these  contracts,  and  in  what  sense,  if  at  all, 
they  are  to  be  treated  as  co-partnerships,  will  presently  be 
considered. 

1.  The  engagement  by  the  voyage,  for  an  entire  sum.^ 
This  is  a  very  ancient  form  of  the  mariner's  contract, 
and  was  used  in  the  earlier  stages  of  commerce,  before  the 
expansion  of  maritime  enterprise  and  the  uncertain  du- 
ration of  voyages  had  rendered  necessary  a  different  mode 
of  fixing  the  compensation  to  be  paid.  It  is  one  of  the 
modes  of  hiring  recognised  in  the  Laws  of  Oleron,  w  hile 
there  are  no  traces  of  a  hiring  by  the  month  in  that  com- 
pilation.^ Ascending  from  the  period  of  this  code,  we 
find  it  also  in  the  Laws  of  Rhodes,*  and  it  seems,  ac- 
cording to  M.  Pardessus,  to  have  been  the  only  mode  of 
hiring  known  to  the  Roman  law.^  The  principal  dis- 
tinction between  this  mode  of  hiring  and  the  hiring  on 
monthly  wages,  is,  that  in  the  latter,  the  pay  consists  in 
so  many  sums  as  the  voyage  shall  be  months  in  duration, 
whether  longer  or  shorter;  while  in  the  former,  it  is  an 
entire  sum  for  a  definite  voyage,  whether  of  longer  or 


'  Pothier,  Lonagcs  Mar.  n.  160. 

'  This  is  wliat  is  called  hiring  for  the  run,  when  the  liiring  is  only  from 
port  to  port,  or,  for  the  outward  or  homeward  voyage  only.  The  ancient 
form  of  this  contract  was  for  the  round  voyage,  out  and  home. 

'  Jugemens  D'  Oleron,  art.  20,  Pardessus,  Lois  Mar.  tome  i,  p.  337,  n.  5. 

*  Droit  Mar.  Dcs  Rhodiens,  eh.  46,  Pardessus,  tome  i,  p.  257. 

*  Pardessus,  Lois  Mar.  tome  i,  p.  337,  n.  5. 


fflRmC    BY  THE   VOYAGE.  63 

shorter  duration.^  Wherever  it  was  practised,  in  ancient 
and  modern  times,  it  created  the  same  relation  to  the 
vessel  as  the  hiring  by  the  month  ;  the  contract  was  for 
an  entire  voyage,  so  that  the  seaman  could  not  leave  at 
his  pleasure  before  the  voyage  was  finished.^  The  en- 
tirety of  the  contract  was  further  observed,  in  favor  of 
the  seamen,  by  the  Laws  of  Oleron,  which  declared  that 
if,  after  having  arrived  at  the  place  of  destination,  the 
master  should  determine  to  go  further,  the  compensation 
of  the  mariners  who  had  been  hired  in  this  form  should 
be  proportionally  augmented  ;  and  that  it  should  not  be 
diminished  if  the  master  chose  to  shorten  the  voyage.^ 
But  as  the  princi})lc  of  the  entirety  of  the  contract  would, 
if  carried  out,  sometimes  deprive  the  mariner,  or  his 
representatives,  of  all  compensation — as  in  the  case  of 
his  death  during  the  voyage  —  it  became  necessary  to  ap- 
ply some  positive  provision  of  equitable  relief;  and  ac- 
cordingly, the  same  code  provides  that  the  wages  shall 
be  paid  to  the  mariner's  representatives.''  The  same 
provision  is  made  in  the  Laws  of  Rhodes,  and  of  VVisbuy.^ 
Whether  wages  were  given  for  the  whole  voyage,  or  only 

'  It  is  obvious  that  the  last  here  mentioned  is  the  most  advantageous  form 
of  contract  for  the  owner  of  the  vessel,  and  the  first  most  advantageous  for 
the  mariners;  an  observation  that  will  be  seen  to  be  of  importance,  from 
further  statements  in  tiie  text. 

'^  Polhier,  L(ma>^KS  Mar.  n.  172. 

»  Jugtmens  D' Oleron,  art.  20,  Tardessus  tome  i,  p.  337.  This  provision 
was  not  extended  to  those  hired  on  a  share  of  the  freight  or  profits,  (the 
only  other  forms  of  contract  recognised  in  this  code,)  for  the  obvious  rea- 
son ibat  their  compensation  did  not  admit  of  tlie  application  of  it.  Sec  also 
L'Ord.  dr.  la  Marine,  liv.  3,  tit.  4,  art.  6.     Code  de  Commerce,  art.  255,  256. 

*  Jugemens  jyOlt.ron,  art.  7,  Pardessus  tome  i,  p.  327. 

»  I>roit  Mar.  Des  lihodiens,  ch.  46,  Pardessus,  tome  i,  p.  327.  Droit 
Mar.  dc  WtiOuij,  art.  21,  Pardessus,  tome  i,  p.  471. 


(j-l.  IIIKLNC    in'   Tlir,    VOYAdE. 

to  tlio  time  of  the  dcatli  of  the  niarinor,  is  a  vexed  ques- 
tion upon  the  inter})retation  of  these  texts.  It  is  also  not 
a])})nrent  by  \\\u\i  nietliod  of  computation  the  pay  ibr  a 
proportional  period  of  the  voyage  was  ascertained ;  though 
it  is  obvious  that  this  was  not  an  insuperable  dilliculty  ; 
and  we  find  a  sini|)le  method  of  ap[)ortionment,  under 
this  form  of  contract,  in  the  ])ractice  of  the  French.^ 

The  French  Ordinance  distinguished  the  apj)lication 
of  the  principle  of  entirety  of  the  contract,  in  this  form 
of  hiring,  from  cases  arising  under  contracts  by  the  month, 
in  a  marked  manner.  In  the  case  of  an  interdiction  of 
commerce,  before  the  voyage  had  begun,  the  effect  of 
^vhich  is  that  the  voyage  is  broken  up,  by  a  vis  major,  it 
placed  those  hired  by  the  voyage,  and  those  hired  by  the 
month,  on  the  same  footing,  and  gave  them  no  wages, 
eo  nomine,  but  merely  the  days-works,  (journees,)  em- 
ployed in  equipping  the  vessel  \  if  the  interdiction  took 
place  during  the  voyage,  they  were  both  to  be  paid  in 
proportion  to  the  time  they  had  served."  This  provision 
is  re-enacted  in  the  Code  de  Commerce.^  In  the  case  of 
an  arrest  of  the  vessel  by  order  of  the  sovereign,  that  is, 


*  See  infra,  n. 

'  L'Ord.  de  la  Marine,  liv.  rj,  tit.  4,  art.  4. 

^  Code  de  Commerce,  art.  253,  254.  The  mode  of  ascertaining  the  pro- 
portion to  be  paid  to  those  hired  by  the  voyage,  held  by  the  most  eminent 
French  jurists,  (j\IM.  Delvincourt,  Pardessus,  Dageville  and  Boulay-Paty,) 
is  to  ascertain  the  ordinary  duration  of  tlic  projected  voyage  ;  then  to  divide 
the  entire  sum  siipuhited  for  by  the  number  of  months  in  this  period,  and 
thus  ascertain  in  effect  what  monthly  wages  would  be  at  the  rate  contracted 
for  the  entire  voyage,  and  to  pay  the  seamen  on  this  basis  for  the  number 
of  months  served.  Thus,  a  seaman  hired  at  two  hundred  dollars  for  an 
entire  voyage,  the  ordinary  duration  of  which  is  ten  months,  would  be  paid, 
if  he  had  served  four  months,  eighty  dollars.  (See  Sautayra,  Sur  Code  de 
Commerce  Expliqu6,  p.  167.) 


HIRIXG    BY   THE   VOYAGE.  65 

of  an  embargo,  which  only  suspends  the  voyage,  the  or- 
dinance and  the  code  provide  that  the  wages  of  seamen 
hired  by  the  month  shall  run  during  half  the  time  of  the 
detention  ;  while  those  hired  by  the  voyage  shall  "  be 
paid  according  to  the  terms  of  their  agreement;"  mean- 
ino;  that  thev  are  not  to  be  augmented  on  account  of  the 
prolongation  of  the  voyage,^  The  reason  assigned  by 
the  commentators  for  making  this  distinction,  is,  that  the 
mariner  who  has  hired  his  services  for  the  voyage,  at  an 
entire  sum,  is  deemed  to  have  taken  the  risk  of  all  acci- 
dents that  may  prolong  it ;  \\  hile  he  who  has  engaged 
for  monthly  wages  has  taken  no  such  risks,  but  has  con- 
tracted to  be  paid  so  much  per  month  for  the  whole  pe- 
riod that  the  voyage  may  last ;  that  strictly,  he  ought  to 
be  paid  for  that  whole  period,  including  the  time  of  the 
embargo  ;  but  as  this  would  be  a  great  burden  upon  the 
vessel,  half  the  time  of  the  detention  has  been  fixed  upon 
as  an  equitable  rule,  founded  also  on  the  fact  that  his  ser- 


'  The  late  British  statute  provides  the  following  mode  of  ascertaining 
forfeitures,  when  the  contract  is  for  the  voynge  or  the  run.  "If  tiie  wliole 
time  spent  in  the  voynge  shall  exceed  one  calendar  month,  the  forfeiture  of 
one  month's  pay  shall  be  accouut.d  to  be  a  forfeiture  of  a  sum  bearing  the 
same  proportion  to  the  whole  wages  as  a  calendar  month  shall  bear  to  the 
wiiole  time  spent  in  the  voyage;  and  in  like  manner  a  forfeiture  of  two 
days'  pay,  or  less,  shall  be  acrounted  to  be  a  forfeiture  of  a  sum  bearing 
the  same  proportion  to  the  whole  wages  as  the  same  period  of  time  shall 
bear  to  the  wiiolc  time  spent  in  the  voyage;  and  if  the  whole  time  spent 
in  the  voyage  shall  not  exceed  one  calendar  month,  ihc  forfeiture  of  one 
month's  pay  shall  be  accounted  to  be  a  forfeiture  of  the  whole  wages  con- 
tracted for:  and  if  such  tiirie  shall  not  exceed  two  days,  the  forfeiture  of 
two  days'  pay  shall  be  accounted  to  be  a  forfeiture  of  ihe  whole  wages  con- 
tracted for:  and  the  master  is  .0  aliale  the  amount  of  all  forfeitures  herein- 
before enacted,  out  of  ilie  wages  of  any  seaman  incurring  the  same."  Act 
5  and  G  Wra.  IV.  ch.  19,  sec.  3. 


6G  iTiRiNo  nv  Tiir,  \c»v\('.r,. 

vices  air  tluMi  of  a  liii,hter  cliaracter,  and   tliat  ho  is  all 
llu'  ^^  hilo  siil)sistr(i  at  tlu*  expense  of  tlie  ship.^ 

Il  (lie  voyage  wcvc  broken  np  by  the  act  ol"  the  owners, 
master,  or  cliarterers,  before  the  departure  of  the  vessel, 
the  Ordinance  ])rovided  that  the  seamen  hired  by  the 
voyage  should  be  paid  the  days-works  employed  by  them 
in  e(|ui|)ping  the  vessel,  and  a  quarter  })art  of  their  stij)U- 
latid  pay  ;  and  those  hired  by  the  month  should  be  paid 
in  pro])ortion,  having  regard  to  the  ordinary  duration  of 
the  voyage.  But  if  the  voyage  was  broken  up  after  the 
departure  of  the  vessel,  the  seamen  hired  by  the  voyage 
were  to  be  paid  their  whole  stipulated  compensation,  and 
those  hired  by  the  month  the  wages  due  for  the  time  they 
had  served,  and  their  jiassage  money  to  the  home  port ; 
and  both  classes  were  to  be  subsisted  until  they  reached 
the  home  port.^  This  law  has  been  somewhat  amended 
by  the  Code  ;  under  which,  if  the  voyage  is  abandoned 
before  the  vessel  sails,  both  classes  are  to  be  paid  their 
days-works  and  to  retain  the  advance  money ;  if  no  ad- 
vance has  been  paid,  they  are  to  receive  a  month's  wages 
in  lieu  of  it  :  if  the  voyage  is  abandoned  after  the  vessel 
sails,  those  hired  by  the  voyage  are  to  be  paid  their  whole 
compensation ;  those  hired  by  the  month,  the  wages 
earned  at  the  time,  and  for  half  the  presumed  duration 
of  the  rest  of  the  voyage.  The  same  provisions  for  their 
return  home  are  also  reenacted.^  Here  ajjain,  the  rea- 
son assigned  by  the  commentators  for  the  distinction,  is, 
that  as  soon  as  the  voyage  has  commenced,  the  seamen 

■  Pothier,  Lavages  Mar.  n.  181.     Sautayra,   (Code  de  Cora.  Nouv.  Ex- 
pliqu6,)  Paris,  1836,  p.  167. 

*  VOrd.  de  la  Marine,  liv.  3,  tit.  4,  art.  3. 
'   Code  de  Com.  art.  252. 


HIRING   BY  THE   VOYAGE.  67 

hired  by  the  vojaoje  have  a  vested  right  to  earn  their 
whole  compensation,  of  which  the  owner  cannot,  by  his 
own  act,  deprive  them ;  whereas  the  pay  of  those  hired 
by  the  month  is  regulated  by  the  duration  of  the  voyage  ; 
they  have  earned  it  to  the  time  when  the  voyage  is  broken 
up,  and  the  half  of  the  residue  of  the  voyage  is  given 
them  in  the  shape  of  damages.' 

So  too,  upon  the  same  general  principle,  both  the  Or- 
dinance and  the  Code  give  to  the  representatives  of  a 
seaman  hired  for  the  voyage,  on  his  death,  half  of  his 
compensation,  if  he  dies  on  the  outward  branch  of  the 
voyage,  and  the  whole,  if  he  dies  on  the  return  voyage ; 
but  in  the  case  of  seamen  hired  by  the  month,  they  give 
only  wages  to  the  time  of  the  death. ^ 

I  have  drawn  these  illustrations  of  this  form  of  contract 
from  the  foreign  law,  because  it  has  so  rarely  come  under 
discussion  in  our  own,  or  the  English  courts.  A  case 
occurred  in  the  latter  part  of  the  last  century,  when  Lord 
Kenyon  presided  in  the  Court  of  King's  Bench,  which 
brought  a  similar  form  of  contract  under  discussion,  upon 
the  question  of  apportionment  of  compensation.  The 
master  of  a  vessel  hired  a  seaman  by  the  run,  from  Ja- 
maica to  Liverpool,  and  gave  him  a  note  promising  to  pay 
hitn  thirty  guineas,  "  providing  he  proceeds,  continues, 
and  does  his  duty  as  second  mate  in  the  said  ship  from 
hence  to  the  port  of  Liverj)ool."  The  seaman  died  on  the 
passage,  and  his  administratrix  brought  an  action  of  as- 
sumpsit, to  recover  a  proportional  |)art  of  the  wages 
agreed    for.     It  a])peared   that    four  poiuuls   ])er   month 


'  Sautayra,  p.  165. 

*  VOrd.  dc  la  Marine,  liv.  3,  lit.  A,  art.  11.     Code  dc  Com.  art.  265. 


68  iimiNc  nv  tiif,  voyaoe. 

Mcvo  \hc  usual  \v;igrs  of  a  second  iii;iU',  wIkmi  shipped  by 
the  month,  on  vovacjos  to  Jamaica,  out  and  liomo,  but 
that  \\\\ci\  shii)|)(Ml  by  tlie  run  from  Jamaica  to  Eni^kind, 
a  gross  sum  was  usually  given  ;  and  that  the  ordinary 
length  of  the  voyage  from  Jamaica  to  Liverpool,  was 
about  eight  weeks.  In  the  absence  of  sufiicient  evidence 
to  show  any  particular  usage,  Lord  Kenyon  held  that  the 
performance  of  the  entire  voyage  was  the  thing  contracted 
for,  and  that  this  being  ascertained  to  be  the  express 
ageement  of  the  parties,  none  other  could  be  implied ; 
that  the  great  disproportion  between  the  sum  agreed  on, 
and  what  the  mariner  would  have  earned  on  monthly 
wages,  (which  would  have  been  only  eight  pounds,) 
showed  that  he  stij)ulated  to  receive  the  larger  sum  if  the 
whole  of  that  duty  were  ])erformed,  and  nothing,  unless 
the  whole  of  that  duty  were  performed  ;  in  fact,  that  it 
was  a  kind  of  insurance.  At  the  same  time,  his  Lord- 
ship and  the  rest  of  the  court  declared  that  if  such  notes 
w'ere  shown  to  be  in  universal  use,  and  that  the  commer- 
cial world  had  received  and  acted  upon  them  in  a  dif- 
ferent sense,  the  court  would  feel  bound  to  adopt  the 
construction  given  by  the  usage,  and  apportion  the  con- 
tract.' 

This  decision  turned,  obviously,  upon  the  peculiar 
form  of  the  contract,  and  the  doctrines  of  the  common 
law  aj)plicd  to  it  in  a  court  of  conmion  law.  Whatever 
its  authority  may  be  as  a  precedent  in  its  peculiar  line  of 
contract,  I  apprehend  that  after  the  well  settled  cases  of 
apportionment  by  the  maritime  law,  in  contracts  for 
monthly  wages,   rendered   necessary  in  cases  of  wreck, 


•   Culler  V.  Powell,  6  T.  R.  320. 


HIRING  OX  iNIOATHLY    WAGES.  69 

capture,  abandonment  of  the  voyage,  and  other  interrup- 
tions, the  only  difficulty  which  our  Admiralty  courts 
would  feel  in  dealing  with  contracts  for  the  voyage, 
would  be  to  settle  the  principles  upon  which  the  appor- 
tionment should  be  made.  The  contract  on  monthly  wages 
is  as  much  an  entire  contract  for  the  voyage,  as  that  on  a 
gross  sum  for  the  entire  voyage  ;  and  yet  the  equitable 
rule  of  the  maritime  law,  by  which  freight  is  made  to 
regulate  wages,  has  too  frequently  interposed  and  modi- 
fied the  entirety  of  the  contract,  to  be  at  all  now  brought 
in  question.^ 

2.   The  engagement  for  a  voyage,  at  monthly  wages. 

Jt  is  not  easy  to  ascertain  when  this  form  of  contract, 
now  the  most  usual  in  the  merchant  service,  was  first 
adopted.  There  are  no  distinct  traces  of  it  in  the  Laws 
of  Oleron.2  It  is  found,  however,  in  the  Consolato,^  and 
from  thence,  through  the  Ordinance  of  Louis  XI V.,"*  down 
to  modern  times,  it  becomes  a  recognised  and  at  length 
almost  the  universal  mode  of  hiring.  Throughout  all  the 
laws  in  which  it  is  found,  its  basis  is  the  same  ;  namely, 
that  it  is  not  a  contract  from  month  to  month,  determina- 
ble by  either  party  at  the  expiration  of  each  month,  but 
a  contract  for  a  definite  voyage,  at  the  rate  of  so  much 
per  month  for  the  whole  time  that  the  voyage  shall  con- 
tinue.^ Hence  it  follows,  also,  that  forfeitures  incurred 
by  offences  in  one  monlli,  can   relate   back  and  involve 

'  See  The  Two  Catharinex,  2  Mason's  R.  319.  Broivn  v.  Lull,  2  Sum- 
ner's R.  443.  Thompson  v.  Faussat,  Pelcrs's  Circ.  C.  R.  182.  Pilmany. 
Jloopcr,  3  Sumner's  R.  50,  286.     The  Malta,  2  Hag.  Adm,  R.  158. 

"  rartlessus,  Lots  Mar.  tome  i.  p.  337,  n.  5. 

»  Consolalo  del  Mare,  eh.  85,  [130,]  Pardessus,  tome  i,  p.  125. 

♦  VOrd.  de  la  Marine,  liv.  3,  tit.  4. 

*  Pothier,  Louages  Mar.  n.  172.     "Valin,  Com.  tome  i,  p.  G7G.     Wallon  v. 


70  HIRING   ON    MONTHLY    WAGES. 

the  \vas;es  of  previous  inontlis  ;  and  accltlents,  which  in- 
terrupt ami  put  au  viu\  to  tlie  voyaire,  so  that  no  freight 
is  received   hv  llie  owner,  carry  witli   tlu>ui  a  loss  of  the 
previous  month's  wages,  as  well  as  of  that  in  which  the 
loss  of  the  ship  takes  place.'     ]5ut   this   princijjle  of  the 
entiretv  of  the  contract,  which,  if  no  other  principle  in- 
tervened, would  involve  a  loss  of  wages  in  some  cases 
not  merely  of  great  hardship,  but  of  great  inequality  and 
injustice   as  between  the  owner  and   the   mariners,  has 
been  modified  by  the  application  of  the  principle  that  the 
earning  of  freight  for  the   owners  is  also  the  earning  of 
wages  for  the  mariners.     The  entire  voyage  for  which 
the  mariners  shipped  is  thus  divided  into  as  many  entire 
periods  as  those  for  which  freight  has  been  or  might  have 
been   received   by  the  owners ;    the   monthly  wages   of 
those  periods  are  earned  and  received  by  the  mariners  ; 
while  the  entirety  of  the  contract,  which  has  only  been 
modified,  not  abrogated,  by  this  rule,  deprives  them  of  the 
wages  of  that  j)eriod  preceding  the  loss  of  the  vessel,  in 
which   no  freight  has  been  or  might  have   been   earned. 
To   the   monthly  wages  thus   earned,   there   are   added 
wages  for  half  the  time  the  vessel  lay  at  the  last  port 

The  Neptune,  Peters's  Adm.  Dccis.  142.  If  indeed  a  seaman  ship  on 
monthly  wag:es,  on  a  general  trading  and  freighting  voyage,  without  any 
particular  designation  of  the  ports  to  be  visited,  and  without  any  certain 
terminus  of  the  voyage,  and  without  any  limitation  of  time  for  which  the 
engagement  is  made,  either  party  may  put  an  end  to  the  contract  at  plea- 
sure, subject  to  the  equitable  restriction  that  this  shall  not  be  done  at  a  time, 
or  under  circumstances,  particularly  inconvenient  to  the  other  party.  See 
The  Crusader,  Ware's  R.  437. 

'  This  is  to  be  understood  with  the  exception  that  the  advance  wages, 
usually  paid  at  the  commencement  of  the  voyage  to  all  seamen,  are  never 
returned,  even  though  the  vessel  does  not  complete  her  voyage,  or  earn 
freight. 


HIRING   ON   FREIGHT  OR  PROFITS.  71 

where  freight  was  or  niiglit  have  been  earned,  on  the 
general  presumption  that  that  portion  of  the  time  was 
spent  in  unloading  the  cargo,  or  in  the  other  business  of 
that  portion  of  the  voyage  antecedent  to  her  arrival  at 
such  port.^ 

The  various  predicaments  of  wages  in  cases  of  cap- 
ture, embargo,  wreck,  breaking  up  of  the  vojage  by  the 
owner,  and  sickness  and  death  of  seamen,  will  be  here- 
after considered. 

3  and  4.  The  contract  for  a  certain  voyage,  at  a  stipu- 
lated share  of  the  freight  or  profits. 

These  two  forms  of  contract  are  so  nearly  analogous 
as  to  constitute  a  class,  to  be  considered  together,  in  re- 
ference to  their  general  principles. 

The  hiring  on  a  share  of  the  freight  was  a  form  of  con- 
tract unknown  to  the  Roman  law,  which  recognised  only 
the  hirino;  by  the  voyage  for  an  entire  sum.  The  first 
traces  of  this  contract  arc  found  in  the  compilation  which 
passes  under  the  name  of  the  Maritime  Law  of  Rhodes.^ 
But  little,  however,  is  to  be  gathered  from  those  frag- 
ments, of  the  nature  of  the  contract.  It  is  first  distinct- 
ly and  systematically  defined  in  the  Laws  of  Oleron.     In 

'  See  The  Two  Catharines,  2  Mason's  R.  319.  Broion  v.  Lull,  2  Sum- 
ner's R.  443.  Pilman  v.  Hooper,  3  Sumner's  R.  50,  286.  Giles  v.  The 
Cynthia,  Pelers's  Atlm.  Decis.  203.  Boardman  v.  The  Elizabeth,  Peters's 
Adm.  Decis.  128.  Johnson  v.  The  Walterstorjf,  Peters's  Adm.  Decis.  215. 
Cranmcr,  v.  Gernon,  Pelers's  Adm.  Decis.  390.  Thompson  v.  Faussat,  1 
Peters's  Circ.  C.  R.  182.  Moore  v.  Jones,  15  Mass.  R.  424.  Hooper  v. 
Perley,  11  Mass.  R.  54-5.  Locke  v.  Sivan,  13  Mass.  R.  76.  Swift  v.  Clark, 
15  Mass.  R.  173.  Murray  v.  Kdlogg,  9  Johns.  R.  227.  Blanchard  v.  Buck- 
man,  3  rirecnleaPs  R.  1.  (Jallowaij,  v.  Morris,  3  Yeates's  R.  445.  Jones 
V.  Smith,  4  Hall's  Am.  Law  Jour.  276. 

*  The  assertion  here  made,  may  seem  to  involve  an  inconsistency;  for 
the  reader,  whose  atleation  has  not  been  particularly  drawn  to  the  chro- 


7'2  iiir.iNc  ON  KKi'.iciiT  on  rnoriTS. 

that  i-o(li\  it  divides  itsclC  into  two  foriiis  :  tlio  mnriners 
oitluM-  had  a  ((Mtaiii  sharo  in  the  (Voiglu  tliat,  should  be 
oaiiu'd,  or  thcv  were  allowed  the  privilege  of  lading  a 
certain  amount  of  merchandise,  as  a  venture,  free  of 
freigiii.'  'rh(>se  privileges  of  taking  up  a  certain  part  of 
the  stowage  of  the  vessel,  as  a  mode  of  compensation, 
seem  to  have  been  introduced  in  the  middle  ages,  in  the 
navigation  of  the  ocean,  and  received  in  France  the  name 
of  Porta(^cs.~  In  some  countries,  tiie  merchandize  thus 
laden  by  the  seamen  was  free  from  duties ;  in  other 
countries,  it  did  not  contribut(i  to  jettison,  but  on  the  con- 
trary, if  it  consisted  of  casks  of  water,  which  for  some 
reason  not  apparent  the  seamen  are  declared  to  be  at 
liberty  to  put  on  board,  it  was  to  be  accounted  and  con- 
tributed for  as  wine,  when  thrown  overboard.     These 

nology  of  these  laws,  will  perhaps  doubt  the  propriety  of  dating  the 
Roman  before  the  Rhodian  Law.  The  truth  is,  however,  that  the  compi- 
lation of  maritime  laws  and  usages  which  passes  under  the  name  of  the 
Laws  of  Rhodes,  does  not  belong  to  that  palmy  state  of  the  Isle  of  Rhodes, 
as  a  great  commercial  emporium,  which  undoubtedly  existed  before  the 
height  of  Roman  jurisprudence,  and  to  whicli  our  imaginations  are  at  once 
carried  back  by  the  Colossus  fabled  to  have  spanned  the  harbor,  in  which 
rode  the  commerce  of  the  Mediterranean.  M.  Pardessus  has  critically  de- 
monstrated that  the  period  of  this  compilation  belongs  to  the  middle  ages: 
and  although  it  opens  with  a  sort  of  prologue,  speaking  in  the  person  of  the 
Emperor  Tiberius  Caesar,  and  reciting  the  sending  of  a  commission  into 
Rhodes,  to  gather  and  consolidate  the  maritime  laws  of  that  tributary 
island,  that  this  prologue  is  nothing  but  one  of  those  apocryphal  documents 
which  were  often  fabricated  in  the  middle  ages,  and  even  in  the  earlier  pe- 
riods of  the  revival  of  letters,  by  way  of  giving  to  the  work  an  air  of  au- 
thority and  antiquity.  He  does  not  question,  however,  that  it  is  a  genuine 
compilation  of  laws  and  usages  existing  in  the  Mediterranean  during  the 
period  to  which  he  assigns  it.  See  Pardessus,  Lois  Mar.  tome  i,  p.  209,  et 
seq. 

'  Jugemens  D'Oleron,  art.  18,  Pardessus,  Lois  Mar.  tome  i,  p.  336. 

*  Technically,  space  allowed  officers  and  seamen  in  the  vessel. 


HIRING  ON   FREIGHT   OR  PROFITS.  73 

ris^hts  were  moreover  assignable  to  a  mercliant,  who  en- 
joyed them  in  the  same  manner  as  the  seaman.^  These 
provisions  show  tliat  the  mariners  shipping  in  this  form 
were  not  regarded  as  partners  with  the  owner,  but  that 
the  portages  constituted  their  compensation  in  a  contract 
for  the  hire  of  services.  If  it  had  been  a  contract  of 
partnership,  in  any  strict  sense  of  that  relation,  as  now 
understood,  their  ventures  would  not  have  been  protected 
in  this  remarkable  manner. 

The  Ordinance  of  Louis  XIV.  and  the  Code  de  Com- 
merce recognise  both  the  hiring  on  a  share  of  freight  and 
of  profits.  They  give  to  the  mariners  so  hired  no  com- 
pensation, where  the  voyage  is  broken  up  or  interrupted 
by  a  vis  major,  whether  before  or  after  it  had  commenced ; 
l)ut  if  broken  up  or  interrupted  by  the  act  of  the  master 
or  owner,  they  give  the  mariners  damages  ;  and  if  by  the 
act  of  the  charterer,  they  admit  them  to  a  share  of  the 
damages  awarded  to  the  ship,  dividing  them  between  the 
owners  and  the  crew  in  the  sanie  proportion  as  the 
freight  would  have  been  distributed.^  Valin  adds,  that 
the  owner  is  responsible  for  these  damages  to  the  crew.^ 
Bolli  the  Ordinance  and  the  Code  also  ])rovide,  that  in 
cases  of  wreck,  where  merchandise  is  saved  and  i)ays 
freight,  it  shall  be  distributed  between  the  crew  hired  on 
the  fr(!ight,  and  the  owners,  according  to  the;  proportions 
of  the  contract:  whereas  the  seamen  hired  on  monthly 
wages  may  absorl)  tlu;  whohi  of  such  freight  to  pay  the 
wages  earned,  if  the  materials  of  the  ship  saved,  which 

•  Jiifrrmrm  TrOhrnn,  art.  IS,  30.     Droit  Mar.  de  Wislniy,  art.  33.     Par- 
dcssiis,  Lnix  Miir.  lorne  i,  p.  330,  344,  483. 

•  i:Ord.  (Ir  la  Marinr,  liv.  3,  lit.  4,  art.  7.      Code  de  Comtncrcc,  art.  257. 

•  Valin,  Corn,  lorric  i,  p.  700. 

10 


74  TiiniN(:  ON'  n^F.KinT  or  i'koi  its. 

aro  fust  to  l)e  appluHl  to  tliis  jnirpo.se,  aro  insufficient.^ 
So  too,  ill  eas(>  of  the  deatli  of  a  seaman  liired  on  a  sliare 
of  the  fr(^i!;iit  or  j)rofit.s,  tlu>y  ii,ive  to  his  representatives 
tlie  whole  of  his  share,  if  he  dies  after  the  voyage  is  ac- 
tually commenced." 

These  j)rovisions  indicate  of  themselves  what  is  in- 
tend(  d  hv  the  French  jurists,  when  they  speak  of  these 
contracts  as  being  a  kind  of  eo|)artnerships.  They  are 
copartnerships  in  this,  that  the  seamen  become  directly 
interested  in  the  fruits  of  the  adventure,  and  they  as  well 
as  the  owner  depend  for  their  remuneration  on  its  suc- 
cess. But  it  does  not  seem  that  the  shares  for  which 
they  contract  are  not  treated  as  in  the  nature  of  wages ; 
on  the  contrary,  they  are  clearly  so  regarded,  with  the 
differences  in  the  application  of  the  general  principles 
rendered  necessary  by  the  risks  assumed  in  the  contract 
by  both  parties. 

In  our  own  law  the  nature  of  these  contracts  is  well 
defined.  They  create  —  when  the  engagement  is  for  a 
specified  voyage,  as  it  necessarily  is  —  the  same  general 
relations  of  the  seamen  to  the  ship  and  the  master  ;  their 
peculiarity  consists  only  in  the  form  of  the  compensation 
for  the  services  hired.  This  form  of  compensation  is 
used  in  general  freighting  and  trading  voyages,  in  the 
fisheries,  and  in  the  cruising  voyages  of  privateers.  In 
these  cases,  the  contract  is  for  the  entire  voyage,  both  on 
the  part  of  the  owners  and  the  seamen  :  and  it  includes 
not  merely  the  time  spent  in  the  active  operations  of  the 

'  UOrd.  de  la  Marine,  liv.  3,  tit.  4,  art.  9;  and  Valin's  Com.  tome  i,  p. 
703.  Code  de  Commerce,  art.  259,  260,  and  Saulayra's  Com.  p.  170.  Po- 
tliier,  Lonages  Mar.  n.  1S4,  185. 

*  L'Ord.  de  la  Marinr,  liv.  3,  tit.  4,  art.  14.    Code  de  Commerce,  art.  265. 


HIRI^^G   ON  FREIGHT  OR   PROFITS.  75 

enterprize,  as  in  obtaining  a  cargo  of  fish,  or  oil,  or  in 
taking  prizes,  during  the  period  named  in  the  articles, 
but  likewise  a  return  to  the  home  port  of  the  vessel.'  If 
the  whole  time  is  not  served  out,  by  reason  of  death  or 
sickness,  it  seems,  that,  in  the  absence  of  express  contract 
on  that  point,  the  same  general  principles  are  to  be  ap- 
plied as  in  cases  of  hiring  on  monthly  wages.^  It  is 
moreover  well  settled  that  in  these  cases  the  seamen  are 
not  partners  with  the  owners,  or  tenants  in  common  with 
the  owners  in  the  proceeds  of  the  voyage  ;  but  that  an 
action  of  assinnpsit  at  common  law,  or  a  libel  in  the  Ad- 
miralty, may  be  brought  to  recover  their  shares,  which 
are  in  the  nature  of  wages,  to  be  ascertained  by  a  final 
settlement  of  the  voyage.^     So  too,  in  the  case  of  the 


i   The  Brutus,  2  Gallison's  R.  526. 

*  Ex  parte  Giddings,  2  Gallison's  R.  56.  See  the  Appendix,  for  the  pro- 
vision on  this  subject  in  the  whaling  contracts. 

^  The  Crusader,  Ware's  R.  437.  Macombcr  v.  Thompson,  1  Sumner's  R. 
384.  Hancox  v.  Fishing  Ins.  Co.  3  Sumner's  R.  132.  Rice  v.  Austin,  17 
Mass.  R.  197.  Baxter  v.  Rodman,  3  Pickering's  R.  435.  See  also  Wil- 
Janson  v.  Frazier,  4  Esp.  R.  182.  Mair  v.  Glennie,  4  M.  and  Sehv.  R.  240. 
Day  V.  Boswell,  1  Camp.  R.  329.  The  Frederick,  5  Rob.  Adm.  R.  8.  A 
very  serious  question,  how  far  the  mariners  are  to  be  treated  as  partners 
with  the  ship  owner,  in  whaling  voyages,  might  arise  in  cases  of  salvage 
service  rendered  to  such  a  ship.  The  contract  is  ordinarily  for  a  certain 
share  of  the  net  proceeds  of  the  voyage.  So  far  as  the  ship  is  concerned, 
the  mariners  are  in  no  sense  copartners  with  the  owner,  and  would  have 
nothing  to  do  witli  the  salvage  paid  on  the  ship.  But  for  the  salvage  paid 
on  the  cargo,  would  ihey  be  liable  ?  Would  the  owner  have  a  right  to  de- 
duct such  salvage  from  the  gross  proceeds,  before  tlic  not  proceeds  were 
ascertained?  The  terms  of  the  contract  would  here  iiavc  great  weight  — 
probably  would  be  decisive.  In  tliis  country,  the  contract  generally  im- 
ports a  /unn;,'-,  distinctly.  "And  the  said  owner  and  master  do  hcrtby 
agree  vnth  and  hire  the  said  seamen  or  mariners  for  the  said  voyage,  at  such 
share  of  the  net  proceeds,  &c.,  to  be  paid  pursuant  to  this  agreement." 
But  I  have  seen  English  whaling  contracts,  of  diU'ercnt  terms;  and  in  a 


76  IIIRINC.   ON   FRKUill'l'  Oil   I'KOFITS. 

master  who  takrs  the  vessel  on  an  agreement  to  divide 
with  tlie  owners  tlie  gross  earnings  of  the  vessel  in  cer- 
tain j)roportions,  it  has  been  held  that  the  owners  are  not 
partners  with  him,  but  that  he  thereby  becomes  the  char- 
terer of  the  vessel,  paying  as  hire  a  certain  portion  of  the 
earnings  in  lieu  of  a  fixed  and  certain  sum  as  charter.^ 

late  case  in  the  Iligli  Court  of  Admiralty,  it  seemed  to  be  the  inclination  of 
the  court  that  the  mariners  were,  under  such  circumstances,  for  this  ques- 
tion as  to  the  salvage,  copartners  with  the  owner  in  the  proceeds  of  the 
voyage.  The  Harriot,  High  Court  of  Admiralty,  Feb.  1841,  reported 
Monthly  Law  Mag.  vol.  x,  p.  137. 

'  Thompson  v.  Snow,  4  Greenleaf 's  R.  264.     But  see  Latham  v.  Lawrence^ 
13  Conn.  R.  299. 


PART  SECOND 


OF    THE    INTERNAL    DISCIPLINE    AND 
ECONOMY   OF   THE   SHIP. 


PART    SECOND. 
CHAPTER   I. 

OF    THE    master's    AUTHORITY   AND    OFFICE    IN    RELATION 
TO    THE    CREW    AND    PASSENGERS. 

The  master  of  a  vessel  holds  a  station,  the  responsibility 
of  which  has  hardly  a  parallel  in  any  other  situation  of 
civil  life  founded  in  all  its  relations  upon  contract.  It 
were  not  to  be  expected  that  every  person,  who,  in  the 
arrangements  of  business,  reaches  this  imj)ortant  station, 
should  be  actually  possessed  of  all  the  qualifications  which 
the  ideal  description  of  the  office  necessarily  implies.  It 
has  happened,  tliat  persons  in  this  liigh  capacity  have 
fallen  lamentably  short  of  these  ()ualilications :  while  it 
has  also  iiappened,  and  not  unfre(iuently  occurs,  that 
there  are  found  in  this  profession  men  whose  moral  and 
intellectual  (jualitics  adorn  human  nature,  and  evince  the 
height  to  A\  liicli  it  may  attain  in  the  discipline  of  the  pri- 
vate and  active;  business  of  life 

Apart  from  the  biisint^ss  qualifications  of  a  shij)-mastcr, 
which,  as  the  agent  of  iiis  owners  and  often  of  other  ])er- 
sons,  he  ought  to  possess,  in  no  slight  degree,  his  r(;lalion 
of  rf)nimaiid  o\(r  the  crew,  and  the  fact  that  upon  his 
siiigl(.'  cxcrlion,  coiuaiic,  jjrndciicc,  know  ledge,  and  skill, 


80  ]MASTi:u's  Ai'Tiiourrv. 

depend  the  lives  of  all  on  board  and  the  fortunes  of  others 
at  home,  call  for  the  exercise  of  hii;h  (jualities  of  charac- 
ter. Upon  his  personal  resjionsihility  for  the  conduct  of 
those  under  him,  and  the  necessity  of  the  case,  is  founded 
liis  authority.  He  has  to  meet  unforeseen  emergencies, 
and  to  dictate  the  mode  in  which  they  are  to  be  overcome; 
to  be  calm  and  skilful  in  the  midst  of  terrible  dangers; 
and  to  ]irovide  for  the  safety  of  the  lives  and  property 
under  his  care,  alike  in  tlu^  temjiest  and  the  calm.  He 
is  required  to  govern  in  good  order  a  little  world,  the  im- 
portant designs  of  which  may  be  as  quickly  and  com- 
pletely lost  by  the  ungoverned  passions  of  those  who 
compose  it,  as  by  the  elements  which  scatter  it  in  frag- 
ments upon  the  sea.  He  is  therefore  invested  with  large 
authority  and  discretion,  for  which  no  other  relation  of 
private  life  furnishes  an  entirely  sufficient  analogy.  He 
has  been  clothed  with  this  authority  from  the  earliest  pe- 
riods of  which  any  written  monuments  remain  to  us  of 
the  nature  of  his  office,  and  it  has  always  been  founded 
on  the  necessity  of  prompt  command  and  instant  obe- 
dience, on  account  of  the  vast  interests  entrusted  to  his 
care.^ 

Jurists,  who  have  treated  of  the  nature  of  the  master's 
authority,  have  been  disposed  to  seek  for  it  an  analogy  in 
that  of  a  parent  over  his  child,  or  of  a  master  over  his 
apprentice  or  pupil.  Such  is  the  comparison  made  by 
Lord  Tcnterden,  who  fortifies  it  by  a  citation  from 
Casaregis,  on  which  Valin  had  also  previously  relied,  in 

'  Lois  D'Oliron,  art.  12,  Pardossus,  Lois  Mar.  tome  i,  p.  332,  and  n.  1. 
Consolato  del  Mare,  ch.  117,  118,  119,  120,  edit.  Pardessus,  vul?.  162,  163, 
164,  165.  Lois  Mar.  de  Wisbuij,  art.  26,  Pardessus,  tome  i,  p.  479.  L'Ord, 
de  la  Marine,  liv.  2,  til.  1,  art.  2.     Jacobsea's  Sea  Laws,  book  2,  cli.  1. 


MASTER'S   AUTHORITY.  81 

making  the  same  suggestion.^  So  far  as  the  analogy 
holds,  it  may  serve  the  purpose  of  a  useful  illustration. 
But  it  is  obvious  that  it  is  quite  insufficient  to  he  applied 
throughout.  On  the  one  hand,  no  such  emergencies 
arise,  in  the  general  course  of  a  child's  or  an  apprentice's 
duty,  as  constantly  arise  in  that  of  a  seaman ;  the  acts 
and  conduct  of  the  former  can  hardly  ever  involve  such  con- 
sequences as  require  the  instant  and  implicit  obedience 
of  the  latter.  On  the  other  hand,  it  is  solely  in  the  business 
and  service  of  the  ship  that  the  master's  authority,  at  least 
to  the  extent  of  punishment,  can  be  exercised  ;  and  he 
has  no  such  power  to  correct  the  general  immoralities  of 
his  crew,  which  in  no  way  affect  the  ship's  service,  as 
belongs  to  a  parent,  or  even  the  master  of  an  indented 
apprentice  on  shore.^  It  seems  to  me,  therefore,  that  it 
is  far  more  accurate  and  scientific,  not  to  rely  on  such 
analogies.  The  authority  of  a  ship-master  is  sui  generis ; 
it  has  its  own  limits  and  definitions  in  the  maritime  law, 
the  materials  for  which,  although  scattered  and  requiring 
to  be  brought  together,  are  yet  perfectly  sufficient  to  fur- 
nish at  least  an  outline,  the  most  im])ortant  features  of 
which  will  be  found  to  be  entirely  peculiar. 

By  the  common  and  the  maritime  law,  the  master  has 
the  supreme  authority  over  all  the  mariners  on  board,  and 
it  is  their  duty  to  obey  his  commands  in  all  lawful  mat- 

'  Abbot  on  Sbippinpr,  p.  t36.  Valin  Com.  tome  i,  p.  449.  The  passage 
from  Casaregis  is  as  follows:  "Magister  nuUam  habet  jurisdiclionem  in- 
genlem  siiarum  navium,  sed  quaiiidam  tanlum  oeconomicam  poleslatem 
vc'l  disri[)linain,  qiisc  usque  ad  levciu  casligationem,  pro  corrigenda  inso- 
lenli^  pl  nial«i  iiiorata  vila  scu  liceiuia  naularuin  el  vectorutu  ;  qiiciiiad- 
moJum  earn  tenet  pater  in  filios,  tnagisler  in  discipulos,  domiuus  in  servos 
vel  faiuiliarcs."     Camrrgis,  Disc.  136,  n.  14. 

•  Bangs  V.  Little,  Ware's  R.  511. 

11 


82  MASTER'S    AUTHORITY. 

ters  relating"  to  tlic  business  and  navigation  of  tlie  vessel 
and  the  preservation  of  good  order.^  By  supreme  au- 
thority, is  intended  here,  that  the  master  is  invested  with 
llie  exclusive  government  of  the  ship  ;  the  necessities 
and  nature  of  the  service  requiring  that  one  mind  only, 
and  not  several,  should  both  originate  and  be  responsil)le 
for  the  direction  of  affairs.  It  is  true  that  anciently  the 
master  was  obliged  to  confer  with  his  crew,  in  certain 
cases,  and  to  take  their  oi)inion  upon  the  propriety  or 
prudence  of  his  course,  and  sometimes  he  was  bound  by 
the  voice  of  the  majority.^  This  was  particularly  the 
case  in  regard  to  a  jettison  ;  in  which  the  master  could 
justify  himself  even  against  the  consent  of  the  owners  of 
the  goods,  if  they  were  on  board,  by  taking  the  opinion 
of  the  crew  upon  the  necessity  for  the  jettison.^  The 
same  provision  exists  in  the  French  law  at  the  present 
day.^  These,  however,  are  special  cases  excepted  out 
of  the  general  rule,  by  positive  law.  They  have  not 
been  incorporated  into  the  maritime  law  of  this  country. 
The  master,  under  our  law,  has  the  sole  authority  in  the 

'  The  question  how  far  the  crew  are  bound  to  obey  commands  not  re- 
lating to  the  service  of  their  own  ship,  has  been  considered  in  a  former 
chapter,  (ante,  p.  34.)  In  illustration  oi  ihe  lawfulness  of  commands,  it  has 
been  held  that  a  refusal  by  a  mariner  to  go  on  shore,  when  discharged  by 
the  master,  in  a  foreign  country,  without  sufficient  cause,  does  not  constitute 
such  a  disobedience  of  orders,  as  will  justify  punishment  for  that  alone, 
because  the  propriety  of  the  refusal  must  depend  upon  the  propriety  of  the 
order.     The  Exeter,  2  Robinson's  Adm.  R.  261. 

*  Lois  D'Oleron,  art.  2,  edit.  Pardessus,  tome  i,  p.  324.  Lois  de  West- 
capelle,  Jugement  2,  p.  371. 

'  Droit  Mar.  des  Rhodiens,c\\.  9,  38,  Pardessus,  Lois  Mar.  tome  i,  p.  243, 
254.  Lois  D'Oleron,  art.  8,  9  ;  lb.  p.  323,  329.  Lois  de  Wisbuij,  art.  22. 
Ibid.  p.  475.     Consolalo  del  Marc,  ch.  54,  [99]  Pard.  tome  ii,  p.  104. 

*  VOrd.  de  la  Marine,  liv.  3,  lit.  8,  art.  1.     Code  de  Commerce,  art.  410. 


MASTER'S    AUTHORITY.  83 

government  of  the  ship,  and  whatever  consideration  it 
mav  he  prudent  for  him  to  give  to  the  advice  of  expe- 
rienced persons  in  the  ship's  company,  he  alone  has  the 
right  to  direct,  subject  to  his  Habiliry  to  answer  for  any 
abuse  or  misuse  of  his  power.  Thus  it  has  been  held 
that  the  crew  of  a  vessel  are  not  authorized  to  make  a 
jettison  of  any  part  of  the  cargo,  without  the  order  of  the 
master;'  that  the  master  alone  can  inflict  punishment 
on  a  seaman,  unless  he  is  absent  and  his  authority  for 
the  time  is  devolved  upon  the  next  person  in  command  f 
and  that  the  mate,  or  any  other  person  ordered  to  carry 
such  })unishmpnt  into  effect,  cannot  refuse  to  do  so,  un- 
less the  master  has  clearly  passed  the  bounds  of  his  legal 
authority,  in  ordering  a  punishment  manifestly  and  grossly 
oppressive  and  disproportioned  to  the  offence.^  In  fact, 
the  very  nature  of  maritime  service  forbids  the  idea  of  a 
divided  authority.  It  has  been  forcibly  said,  that  if  the 
master  were  obliged  to  consult  the  crew,  or  even  his 
inferior  officers,  in  emergencies,  the  mischief  would  be 
accomplished  before  the  debate  was  brought  to  a  close, 
and  the  ship  and  crew  would  be  irretrievably  lost,  before 
the  opinions  could  be  collected  on  the  best  mode  of 
warding  off  the  danger.'' 

Such  is  the  legal  position  of  the  master ;  but  it  does 
not  preclude  him  from  assisting  his  own  judgment  by 
that  of  those  around  him  ;  it  requires  him  to  act  upon 
his  own  responsibility.  He  may  be  a  young  man,  for 
the  first  time  invested  with  this  important  trust,  and  there 

'   The  NunroJ,  Ware's  R.  1. 

»  United  States  v.  Tai/lor,  2  Sumner's  R.  594. 

»  JiutUr  V.  NTLellan,  Ware's  R.  219. 

*  Ibid. 


84  MASTER'S    AUTHORITY. 

iiKiy  1)0  ill  llic  ship's  company  votornns  ^\Iio  luivc  passed 
twifc  his  joars  in  arcjiiiriDg  tho  droad  cxpcMicncc  of  the 
sen.  lie  will  proju'ily  bo  desirous  to  avail  himself  of 
their  knowledge  and  advice;  his  owners  and  all  other 
persons  interested  will  more  fully  justify  the  event,  if  he 
does  so  ;  hut  nc^itlicr  he  nor  they  arc  to  lose  sight  of  the 
fact,  that  as  the  responsibility,  so  also  the  sole  authority 
rests  with  him. 

The  manner  of  exercising  the  important  authority  of  a 
master  is  worthy  of  some  notice.  On  the  one  hand,  the 
same  degree  of  personal  civility  or  moderation  of  lan- 
guage, in  giving  commands,  is  not  expected  on  ship- 
board, the  opposite  of  which  might  excuse  some  hesita- 
tion of  obedience  in  other  employments.  Orders  may 
be  clothed  in  very  harsh  language  ;  yet  they  must  be 
obeyed  ;  and  no  severity  of  mere  manner,  unconnected 
-with  actual  oppression,  can  for  a  moment  excuse  the  per- 
formance of  duty.^  But  on  the  other  hand,  a  prudent 
and  considerate  master,  however  energetic  he  may  be  in 
the  exercise  of  his  authority,  will  temper  his  energy  with 
a  proper  consideration  for  the  rights  of  humanity  and  the 
best  interests  of  the  service.  He  must  especially  be  care- 
ful that  he  does  not  set  the  example  of  illegal  conduct  ; 
that  he  does  not  commence  a  dispute,  or  incite  a  contro- 

'  "Disobedience  of  orders,"  observes  Lord  Stowell,  "being  an  offence 
of  ihe  grossest  kind,  it  is  not  a  peremptory  or  harsh  tone,  or  an  overcharg- 
ed manner  in  the  exercise  of  authority,  that  will  justify  resistance.  It  will 
not  be  sufficient,  that  there  has  been  a  want  of  that  personal  attention  and 
civility  which  usually  take  place  on  other  occasions,  and  might  generally 
be  wished  to  attend  the  exercise  of  auiiioriiy.  The  persons  subject  to 
authority  on  ship  hoard  are  not  to  be  captious,  or  to  lake  exception  to  a 
neglect  of  formal  and  ceremonious  observance  of  behavior."  The  Exeter, 
2  Robinson's  Adm.  R.  261. 


MASTER  MAY  INFLICT  PUiMSHMEJNT.  85 

versy,  by  some  act  that  is  unjustifiable  on  his  own  part ; 
and  that  he  does  not,  by  encouraging  disorderly  behavior, 
deprive  himself  of  tiie  power  of  punishing  for  conduct 
arising  out  of  that  disorder.' 

The  nature  of  the  master's  authority  will  be  further 
illustrated,  by  examining  the  means  by  which  he  may 
enforce  his  commands,  restrain  the  conduct  of  his  crew, 
and  preserve  the  discipline  and  good  order  of  the  ship. 
Here  the  law  has  invested  him  with  a  somewhat  wide 
range  of  discretion  ;  and  at  the  same  time  it  watches  the 
exercise  of  that  discretion  with  a  jealous  eye.  He  may 
inflict  punishment,  to  prevent  a  recurrence  of  offences  by 
the  same  individual,  or  by  others  :  but  it  must  be  applied 
with  due  moderation  ;  and  if  any  unnecessary  severity 
or  cruelty  is  exercised,  or  if  the  punishment  be  dispro- 
portioned  to  the  offence,  the  master  then  becomes  a  tres- 
passer, and  will  be  liable  to  the  seaman  in  an  action  for 
damages,^  and  to  a  criminal  prosecution  under  a  statute  of 
the  United  States.^     If  it  appears  that  some  punishment 

'  Tlwrne  v.  Wliite,  1  Peters's  Adm.R.  174.  Roberts  v.  Dallas,  Bee's  R. 
239. 

'  Inthe  Admiralty  : — Thnmasv.  Lo?jf,  2  Semner'sR.  1.  United  States  v. 
Wickham,  1  Washington's  R.  .310.  Rclf  v.  The  Maria,  1  Peters's  Adni.  R. 
186.  Thome  v.  White,  Ibid.  172,  174.  Rice  v.  The  Polly  and  Kitty,  2  Ibid. 
420.  Jarvis  v.  The  Master  of  the  Claiborne,  Bee's  Adni.  R.  420.  Roberts 
V.  Dallas,  Ibid.  239.  Turner's  Case,  Ware's  R.  83.  Bangs  v.  Little,  Ibid. 
506.  Butler  v.  McLcllan,  Ibid.  219.  The  Exeter,  2  Robinson's  Adni.  R. 
261.  The  Afrincourt,  1  Haggard's  Adm.  R.  271.  The  Lnwther  Castle,  Ibid. 
384.  The  Centurion,  \\i\A.\Q\.  The  Enchantress,lbid.  395.  At  Common 
Law  :—  Sampson  v.  Smith,  15  Mass.  R.  365.  Brown  v.  Howard,  14  Johns. 
R.  119.     Watson  v.  Christie,  2  Bos.  and  Pul.  224. 

»  Act  U.  S.  3  March,  1835,  sec.  3.  "If  any  master  or  other  ofliccr  of 
any  American  ship  or  vessel  on  the  high  seas,  or  on  any  other  waters  wiihia 
the  admiralty  and  maritime  jurisdiction  of  the  United  Slates,  shall,  frona 
malice,  hatred   or    revenge,    .nnd  without  justifiable  cause,   beat,  wound, 


8G  MASTRR  MAY  IXFLICT  PUNTSIIIMF.NT. 

was  mrritod,  ("ourts  of  justice  will  not  usually  p;ivo  dam- 
ages, unless  if  was  manifestly  exeessivc;  and  (lis|)ioj)or- 
tionate  to  the  fault  ;'  and  the  jjioseeution  under  the 
statute  will  not  be  sustained,  unless  a  wilful  intention  to 
do  an  injuiv,  and  a  want  of  justiliable  cause  to  inflict  the 
injury  are  both  shewn." 

The  time  and  means  of  piuiishment  are  important  con- 
siderations. It  may  be  inflicted  immediately  on  the  com- 
mission of  the  oflence,  or  after  such  interval  as  the  pru- 
dence of  the  master  may  dictate.^  Lord  Tenterden 
recommends  such  delay,  in  cases  not  requiring  instant 
correction  to  arrest  mutinous  tendencies,  or  to  enforce 
tlie  performance  of  a  specific  duty,  in  order  that  the  mas- 
ter, by  taking  the  advice  of  the  persons  next  below  him 
in  authority,  may  prevent  the  operation  of  passion  in  his 
own  breast,  and  secure  witnesses  to  the  propriety  of  his 
conduct/     Such   advice   is  matter  of  prudence,  not  of 

or  imprison,  any  one  or  more  of  the  crew  of  such  ship  or  vessel,  or  with- 
hold from  them  suitable  food  and  nourishment,  or  inflict  upon  them  any 
cruel  and  unusual  punishment,  every  such  person  so  offending  shall,  on  con- 
viction thereof,  be  punished  by  fine,  not  exceeding  one  thousand  dollars,  or 
by  imprisonment  not  exceeding  five  years,  or  by  both,  according  to  the  na- 
ture and  aggravation  of  the  offence."  The  words  "one  or  more  of  the 
crew,"  in  this  statute,  include  the  officers,  as  well  as  the  sailors,  and  the 
master  is  liable  for  a  malicious  imprisonment  of  the  chief  mate.  United 
States  V.  Winn,  3  Sumner's  R.  209. 

*  Sutler  V.  M'LcUan,  Ware's  R.  219. 

*  The  construction  of  the  term  malice,  hatred  or  revenge,  in  the  statute 
above  quoted,  has  come  under  the  notice  of  the  Circuit  Court  of  the  United 
States  for  the  first  circuit.  It  has  been  held  that  "  malice"  signifies  wilful- 
ness, or  a  wilful  intention  to  do  a  wrongful  act ;  and  that,  to  authorize  a  con- 
viction under  this  act,  two  things  must  be  shown  ;  first,  malice,  or  hatred, 
or  revenge  ;  and  secondly,  a  want  of  justifiable  cause  to  inflict  the  injury. 
United  States  v.  Taylor,  2  Sumner's  R.  5S4. 

*  Sampson  v.  Smith,  15  Mass.  R.  365, 

*  Abbott  on  Shipping,  p.  136,  edit.  1829. 


PUNISHMENT  MUST  BE  FOR  OFFENCES  OF  THE  SAME  NATURE.  87 

legal  necessity.  But  there  is  also  another  reason  for  de- 
lay, ill  all  cases  that  will  admit  of  it;  that  due  inquiry 
should  precede  the  act  of  punishment,  so  that  the  party 
charged  may  have  the  benefit  of  that  rule  of  universal 
justice,  of  being  heard  in  his  own  defence.'  But  if  the 
case  is  one  where  the  public  manner  in  which  the  offence 
is  committed  renders  investigation  useless  ;  or  where  the 
prompt  reaction  of  lawful  force  is  called  for,  to  meet  the 
disorders  of  a  commencing  mutiny,  delay  would  be  both 
unnecessary  and  dangerous. 

It  is  not  necessary  that  the  offence  immediately  pro- 
vokins  i)unishment  should  be,  of  itself,  such  as  to  call  for 
the  amount  of  ])unishment  inflicted,  provided  it  is  con- 
nected with  similar  offences  antecedently  committed, 
which,  upon  the  recurrence  of  them  in  the  particular  case, 
will  justify  the  punishment  as  a  preventive  measure,  to 
guard  against  the  inconveniences  that  may  reasonably  be 
expected  to  attend  a  recurrence  of  them.  But  it  must 
be  an  act  allied  in  nature  to  those  which  it  follows  ;  an 
act  of  theft  will  not  prove  a  habit  of  drunkenness  ;  if  any 
act  of  mutiny  is  charged,  it  should  be  mutinous  conduct 
of  a  former  date  that  alone  can  be  invoked  with  propriety, 
to  aggravate  the  charge  of  a  mutinous  dis|)osition.  A 
reference  to  by-irone  acts  must  be  very  distinct ;  and 
the  master  should  not  lose  sight  of  the  fact,  in  meting 
out  the  punislimont,  that  the  la})se  of  time  between  the 
several  offences  may  have  given  the  mariner  and  the 
crew  a  rii'^ht  to  presimie  that  they  had  been  tacitly 
pardoned  ;  and  that  the  im])unity  shown  to  former  of- 
fences may  haxc  i:reatlv  eouirihuted  to  produce  the  pies- 

'   The  Agincourt,  1  Haggard's  Adin.  R.  271. 


83  CORTOHAI,  rUNISn.MKNT  {OMPARATIVKI.V  MdOKUN. 

ent.'  In  sliort,  tlie  master  is  not  JuslifKHl  in  punishing  a 
seaman,  it  a  stale  of  things  lias  intervened,  wliieh  is  to 
be  taken  as  a  j)arclon  of  former  offenees ;  as  wliere  a 
mariner  had  been  diseharged  for  improjjer  conduct,  wliieli 
fullv  Justified  the  discharge,  and  had  afterwards  been 
taken  on  board  again,  it  was  held  that  the  master  had  no 
right  to  assault  and  imprison  him,  without  any  new 
crime. ^ 

No  particular  mode  or  instrument  of  punishment  is 
prescribed  by  the  maritime  law.  Much  latitude  of  dis- 
cretion is  here  also  confided  to  the  master,  subject  to  the 
same  liability  to  answer  for  the  propriety  of  his  conduct. 
Corporal  punishment  does  not  seem  to  have  been  sanc- 
tioned in  direct  terms,  in  the  ancient  maritime  ordinances. 
Severe  and,  in  some  cases,  sanguinary  penalties,  were 
enacted  against  offences  of  various  kinds  ;  but  they  were 
generally  to  be  applied  by  the  public  authorities ;  ai:^ 
probably  their  severity  and  the  minute  provisions  into 
which  they  entered,  in  regard  to  the  discipline  and  good 
order  of  the  shij),  answered,  in  those  ages,  nearly  the 
same  purpose  as  the  discretionary  power  of  moderate  cor- 
rection, w  liich  the  modern  law,  for  reasons  of  a  wise  and 
really  humane  policy,  has  found  it  necessary  to  confide 
to  the  master.^     The  ordinance  of  Louis  XIV.  expressly 

*  The  Agincourt,  1  Hag.  Adm.  R.  271.  Sampson  v.  Smith,  15  Mass.  R, 
365.  It  seems  that  a  pardon  granted  by  the  luasler  to  one  of  several  of- 
fenders has  no  operation  as  to  rest.  See  Relf  v.  The  Maria,  1  Peters's 
Adm.  R.  186. 

'  Huberts  v.  Dallas,  Bee's  Adm.  R.  239. 

*  Lois  D'Oleron,  art.  12,  14.  Pardessus,  Lois  Mar.  tome  i,  p.  332,  333. 
Lois  de  Westcapelle,  Jugement  12,  14.  Ibid.  p.  373,  379.  Droit  Mar.  de 
Wisbuy,  art.  26,  28.  Ibid.  p.  479,  4S1.  Consolato  del  Mare,  ch.  117,  118, 
119,  120,  [162,  3,  4,  5].     Ibid,  tome  ii,  p.  145,  et  scq. 


CORPORAL  PUNISHMENTS   ALLOWED   BY  OUR  LAW.  89 

sanctions  corporal  punishment,  and,  in  the  opinion  of 
Vahn,  authorizes  it  both  at  sea  and  in  port.*  In  our  law, 
it  is  well  settled  that  moderate  corporal  punishment  may 
be  inflicted  f  and  it  is  in  this  that  the  analogy  between 
a  ship-master's  authority,  and  that  of  a  parent  or  a  mas- 
ter of  an  apprentice  on  shore  has  perhaps  a  more  appro- 
priate application  than  in  regard  to  most  other  features  of 
the  relation.  Lord  Stowell  says  that  tlie  force  of  the 
analogy  here  is,  that  the  authority  is  inherent  in  him  u[)on 
the  same  grounds  of  necessity  and  sound  discretion  in  the 
one  case  as  in  the  other  ;  not,  however,  to  be  used  exactly 
in  the  way  of  an  equal  measure  of  punishment,  because  the 
apprentice  is  generally  of  too  tender  years  to  bear  the  same 
degree  of  correction  that  may  properly  be  administered  to 
a  seaman  of  mature  years  and  confirmed  strength;  and 
because  the  misconduct  or  negligence  of  the  former  can 
rarely,  if  ever,  draw  after  them  such  consequences  as  fol- 
low those  of  the  latter,  ^A  hicli  may  be  fatal  to  all  the  lives 
and  property  on  board.^ 

Deadly  weapons  are  not  to  be  employed  by  the  mas- 
ter or  any  one  else,  in  the  correction  of  a  seaman  for  a 
past  offence,  nor  in  enforcing  obedience  to  a  specific  com- 
mand, unless  the  refusal  is   clearly  a  case  of  mutiny,  or 


'  VOrd.  de  la  Marine,  liv.  2,  tit.  1,  art.  22.  Valin's  Com.  tome  i,  p.  447, 
et  seq. 

•  United  Slates  v.  Wichham,  1  Wasliington's  R.  316.  United  States  v. 
Taylor,  2  Sumner's  R.  584.  Tlwrne  v.  White,  \  Pcters's  Adm.  R.  172. 
Rice  V.  The  Polly  and  Kilty.  2  lb.  420.  Satnpson  v.  Smith,  15  Mass.  R. 
3G5.  Acrtscn  v.  Tlie  Ship  Aurora,  Bee's  R.  IGl.  Tnrner^s  Case,  Ware's  R. 
83.  Duller  v.  M'I.<lhm,  lb.  219.  Bani^s  v.  Little,  lb.  50G.  The  Airincourt, 
1  Hag.  Adiii.  R.  271.     Wulson  v.  Christie,  2  Bos.  &  Pul.  224. 

*  The  Agincourt,  1  Hag.  Adm.  R.  271. 

12 


00  CORrORAL  PUNISHMENTS   ALLOWF.D   BY  OUR   LAW. 

justifies  the  reasonable  apprehension  of  a  mutiny.'  Thus, 
for  example,  if  a  seaman  should  refuse  to  obey  a  specific 
command,  ^hile  all  the  rest  of  the  crew  were  in  a  state 
of  (piietness  and  subordination,  nothinj^"  could  justify  the 
master  in  shooting  at  him,  or  wounding  him  with  a  cut- 
lass, to  compel  his  submission.  He  might  be  flogged,  or 
knocked  down,  or  put  in  irons ;  but  not  assailed  with 
wea})ons,  the  usual  effect  of  which  is  death,  or  extreme 
bodily  injury.  But  a  case  of  actual  mutiny,  or  the  rea- 
sonable api)rehension  of  mutiny,  places  the  master  in  a 
very  different  attitude.  The  scope  of  this  offence  is  the 
entire  subversion  of  the  master's  authority,  which  it  is  his 
duty  to  prevent  at  all  liazards.  The  exertion  of  his  au- 
thority for  this  purpose  brings  his  own  personal  safety  into 
danger.  He  may  therefore,  both  from  his  duty  to  pre- 
serve his  lawful  authority,  and  upon  grounds  of  self-de- 
fence, make  use  of  any  force  and  any  weapon,  which  the 
exigency  of  the  case  requires ;  but  still,  with  all  the  cau- 
tion which  the  law  requires  in  all  other  cases  of  self-de- 
fence and  vindication  of  lawful  authority.^ 

Imprisonment  on  board  tlie  shij)  by  confinement  in  irons, 
or  otherwise,  is  a  lawful  mode  of  punishment.  But  the 
practice  of  imprisoning  seamen  in  foreign  jails,  has  been 
held  to  be  of  doubtful  legality^  and  to  be  justified  only  in 
cases  of  strong  necessity,  as  where  the  individual  is  to  be 

'  Jarvis  v.  The  Master  of  the  Claiborne,  Bee's  R.  248.  Aertsen  v.  Ship 
Aurora,  lb.  161. 

*  United  States  v.  Wickham  1  Washington's  R.  316.  Sampson  v.  Smith, 
15  Mass.  R.f^SeS.    MichrJson  v.  Denison,  3  Day's  R.  294.    Thome  v.  White, 

1  Peters's  Adtn.  R.  168.  Story's  Notes  to  Abbott  on  Shipping,  p.  137.  See 
the  definition  of  mutiny,  &c.  post.  Part  2,  ch.  4.  Holding  of  fists  to  strike 
the  master,  is  so  near  an  act  of  mutiny,  that  the  master  may  quell  it  by 
striking  the  first  blow.       The  Lima,  3  Hag.  Adrn.  R.  353. 


CORPORAL  PUNISHMENTS  ALLOWED  BY  OUR  LAW.  91 

brought  home  in  irons  for  some  crime,  or  is  absolutely 
dangerous  to  the  peace  and  safety  of  the  ship,  or  the  offi- 
cers, or  the  crew.^ 

The  advice  of  an  American  Consul  does  not  alter  the 
circumstances  of  the  case,  on  which  alone  depends  the 
master's  justification.^  It  has  also  been  held  that  the 
prison  expenses  cannot  be  deducted  from  the  mariner's 
wages,  if  the  imprisonment  was  improper.' 

But  the  recent  statute  (of  1840,)  authorizes  the  con- 
suls to  employ  the  local  police,  to  reclaim  deserters,  and 
discountenance  insubordination.'* 

With  regard  to  offences  which  amount  to  public  crimes 
of  serious  aspect,  although  the  master  may  by  force  restrain 
the  commission  of  them,  he  has  no  judicial  authority  to 
punish  the  criminal,  but  should  secure  his  person  and  bring 
him  home  to  be  delivered  up  to  the  public  authorities. 

In  respect  to  the  passengers,  the  master  stands  of 
course  upon  a  very  different  footing  than  with  regard  to 
the  crew.  He  can  restrain  them  from  violating  the  peace 
and  good  order  of  the  ship,  but  he  can  require  of  them  no 


•  Wilson  V.  The  Brig  Many,  Gilpin's  R.  31 .  Magce  v.  Ship  Moss,  lb.  219. 
TheNimrod,  Ware's  R.  9.    The  David  Pratt,  lb.  503. 

•  Wilson  V.  The  Brig  Mary,  ut  supra.  The  William  Harris,  Ware's 
R.  367. 

*  Where  a  seaman  is  imprisoned  by  the  authorities  of  a  foreign  country, 
for  a  violation  of  its  laws,  the  costs  and  charges  of  imprisonment  may  be 
deducted  from  his  wages ;  but  not  so  when  he  is  imprisoned  at  the  instance 
of  the  master.  Magee  v.  Ship  Moss,  Gilpin's  R.  219.  So  too,  where  a  sea- 
man is  detained  in  jail  in  the  home  port,  for  a  voluntary  absence,  until  the 
vessel  is  ready  to  proceed  to  sea,  the  wages  run  during  the  time,  but  the 
cost  of  his  commitment  and  support  in  jail,  may  be  deducted  frotn  ihcm. 
Brewer  et  al.  v.  The  Maiden,  Gilpin's  R.  294.  But  see  how  far  the  Act  of 
1840  bears  upon  this  question. 

*  Act  U.  S.  20  July,  1840,  sec.  1 1 . 


92         coR^ol^\I,  tunishmknts  allowed  ry  our  law. 

scr\  ices,  c\('(>|)i  works  of  nccc>ssi(y,  in  tinu;  of  daiii^cr,  for 
the  preservation  of  the  lives  and  property  on  board,  as  to 
defend  the  vessel  when  attacked  by  pirates  or  an  enemy, 
and  to  assist  in  ])erils  of  the  sea ;  and  even  these  services, 
it  seems  they  i\rc  not  bound  to  perform,  if  they  choose  to 
avail  th(Miiselves  of  any  means  Avhich  may  occur,  whereby 
they  can  leave  the  vessel.'  The  master's  relation  to  them 
at  all  other  times  is  one  of  ])eculiar  delicacy.  It  has  been 
held  by  Mr.  Justice  Story  that  the  contract  of  passengers 
with  the  master,  is  not  for  mere  shi])-room,  and  personal 
existence  on  board,  but  for  reasonable  food,  comforts, 
necessaries  and  kindness ;  that  in  respect  to  females,  it 
proceeds  yet  farther,  and  includes  an  implied  stipulation 
against  obscenity,  immodesty,  and  a  wanton  disregard  of 
the  feelings,  and  that  a  course  of  conduct,  oppressive  and 
malicious  in  these  particulars,  will  be  punished  by  courts 
of  Justice,  as  well  as  personal  assaults.* 

Congress    have   seen   fit    to    make    special    provision 
for  the  subsistence  of  passengers,  independent  of  any 

'  Newman  v.  Wallers,  3  Bos.  &  Pul.  R.612.    Boyce  v.  Bayliffe,  1  Camb. 
N.  P.  R.  58. 

'  Chamberlain  v.  Chandler,  3  Mason's  R.  242.  The  Court  of  Admiralty 
entertains  jurisdiction  of  personal  torts  committed  by  the  master  on  a  pas- 
senger, whether  by  direct  force  as  trespasses,  or  by  consequential  inju- 
ries. Ibid.  See  also  Keene  v.  Lizardi,  5  Martin's  Louis.  R.  431.  On 
the  other  hand,  passengers  are  to  conduct  themselves  respectfully,  and 
with  good  breeding  towards  the  master.  It  was  recently  held  in  England, 
that  conduct  unbecoming  a  gentleman,  in  the  strict  sense  of  the  word,  would 
justify  a  captain  of  a  ship  in  excluding  a  passenger  from  the  cuddy  table 
whom  he  had  engaged  by  contract  to  provide  for  there;  though  it  might  be 
difficult  to  say  in  what  degree  want  of  polish  would,  in  point  of  law,  war- 
rant such  exclusion;  but  that  it  was  clear  that  if  a  passenger  use  threats  of 
violence  towards  the  captain,  the  captain  may  exclude  him  from  the  table, 
and  require  him  to  take  his  meals  in  his  own  private  apartment.  In 
C.  B.;  M.  T.  1,S37:   Prendergast  v.  Compton,  8  Car.  &  Pa.  454. 


CORPORAL  PUNISHMENTS  ALLOWED  BY  OUR  LAW.  93 

private  stores  they  may  put  oii  board,  by  requiring  the 
master  to  have  on  board,  for  each  and  every  passenger,  the 
same  kind  and  quantity  of  provisions  as  are  required  for 
the  seamen ;  and  the  penalty  of  three  dollars  for  each  and 
every  day  that  a  passenger  may  be  put  on  short  allowance 
by  a  master  who  has  not  furnished  his  vessel  as  the  law 
requires,  is  made  recoverable  in  the  same  manner  as  sea- 
men's wages.' 

'  Act  U.  S.  2  March,  1819,  ch.  170,  sec.  3.  "  That  every  ship  or  vessel 
bound  on  a  voyage  from  the  United  States  to  any  port  on  the  continent  of 
Europe,  at  the  time  of  leaving  the  last  port  whence  such  ship  or  vessel  shall 
sail,  shall  have  on  board,  well  secured  under  deck,  at  least  sixty  gallons  of 
water,  one  hundred  pounds  of  salted  provisions,  one  gallon  of  vinegar,  and 
one  hundred  pounds  of  wholesome  ship  bread,  for  each  and  every  passenger 
on  board  such  ship  or  vessel,  over  and  above  such  other  provisions,  stores 
and  live  stock,  as  may  be  put  on  board  by  such  master  or  passenger  for  their 
use,  or  that  of  the  crew  of  such  ship  or  vessel ;  and  in  like  proportion  for  a 
shorter  or  longer  voyage  ;  and  if  the  passengers  on  board  of  such  ship  or  ves- 
sel in  which  the  proportion  of  provisions  herein  directed  shall  not  have  been 
provided,  shall  at  any  time  be  put  on  short  allowance,  in  water,  flesh,  vine- 
gar, or  bread,  during  any  voyage  aforesaid,  the  master  and  owner  of  such 
ship  or  vessel  shall  severally  pay,  to  each  and  every  passenger  who  shall 
have  been  put  on  short  allowance  as  aforesaid,  the  sum  of  three  dollars  for 
each  and  every  day  ihcy  may  have  been  on  such  short  allowance ;  to  be 
recovered  in  tlie  same  manner  as  seaman's  wages  are  or  may  be  recovered." 
For  the  construction  of  the  analogous  statute  in  reference  to  seaman,  see 
post,  Part  2,  ch  3. 

The  other  provisions  of  this  Act,  containing  directions  to  masters  of  ves- 
sels respecting  the  numbers  of  passengers,  the  list  or  manifest  to  be  deliver- 
ed to  the  collector,  &c.  ice.  will  be  found  in  the  Appendix. 


CHAPTER  II. 

OF    THE    AUTHORITY    AND    OFFICE    OF    THE    MATE. 

The  mate^  is  an  officer  participating  for  some  purposes 
in  the  functions  of  tlie  master,  while  the  latter  is  in  the 
exercise  of  his  office,  and  succeeding  fully  to  those  func- 
tions, when  the  master  dies,  or  is  absent.  As  long,  how- 
ever, as  the  master  is  on  board,  the  mate's  is  essentially 
a  subordinate  station  ;^  and  its  general  scope  consists  in 
carrying  into  execution  the  actual  or  implied  commands 
of  the  master.  His  general  authority  extends  to  the  is- 
suing of  lawful  commands,  of  himself — which  must  be 
promptly  obeyed  by  the  crew,  as  if  emanating  from  the 
master,  without  waiting  to  question  or  ascertain  the 
fact — subject  to  his  responsibility  to  the  superior  au- 
thority of  the  master  for  the  propriety  or  reasonableness 
of  the  order.  His  duties  are  to  exercise  a  general  super- 
intendance  over  every  thing  that  concerns  the  ship's  ser- 
vice, and  to  advise  the  master  of  whatever  requires  his 
attention.^     By  the  usage  generally  prevailing,  it  is  also 

'  In  Latin,  prorcta,  in  French,  contremailre  ;  the  former  term  being  given 
to  him  because  anciently  he  commanded  from  the  prow  to  the  mizzen  mast. 

'  For  the  reason  assigned  with  sententious  naivelh  by  Valin  —  '■''  car  deux 
maitres,  independans  Vun  de  I'autre,  seroient  de  trop  sur  un  navire."  Com. 
tome  i,  p.  494. 

'  Consolalo  del  Mare,  ch.  17,  [62,]  Pardessus,  tome  ii,  p.  70.  VOrd.  de 
la  Marine,  liv.  2,  tit.  5.     Valin,  Com.  tome  i,  p.  494,  et  seq. 


OFFICE  OF  THE  MATE.  95 

his  duty  to  superintend  the  receiving  and  stowing  and 
delivery  of  the  cargo.^ 

His  general  function,  while  at  sea,  is  to  superintend 
the  sailing  of  the  vessel,  in  which  he  is  the  representa- 
tive and  aid  of  the  master.  By  the  general  maritime 
usage  it  is  also  his  duty  to  keep  the  log-book,-  in  which 
he  should  make  a  faithful  and  minute  journal  of  the 
voyage.^  He  should  be  a  person  of  activity,  fidelity, 
vigilance,  prudence  and  good  seamanship.  He  should 
have  that  dignity  of  character  that  will  keep  him  from 
too  great  familiarity  with  the  crew,  and  he  should  espe- 
cially avoid  making  them  the  confidants  of  any  discon- 
tents he  may  entertain  towards  the  master."*  In  fine,  it 
may  not  be  unsuitable  to  add,  in  the  impressive  injunc- 
tion of  the  Consulate  of  the  Sea,  that  "  he  ought  to  con- 
duct himself  with  fidelity  towards  the  merchants,  the 
master,  the  mariners,  the  passengers,  and  generally  to- 
w^ards  all  the  world." ^ 

Like  that  of  every  other  seaman,  the  contract  of  the 
mate  implies  competency  for  the  station  which  he  as- 
sumes.    By  the  Consolato,  the  mate  who  was  incompe- 

'  In  stating  the  duties  of  the  mate,  it  is  not  my  purpose  to  assign  more 
than  the  general  outline  of  his  office,  his  particular  duties  being  rather  mat- 
ter oi  fact,  than  of  Jnw,  depending  on  the  usage. 

*  Jacobsen's  Sea  Laws,  book  2,  oh.  2. 

*  The  importance  of  this  journal  cannot  be  too  highly  estimated  by  a 
faithful  seaman.  It  is  made  by  the  law  of  some  countries  of  equal  authen- 
ticity with  notarial  instruments ;  and  by  our  law,  it  is  recorded  evidence 
for  some  important  purposes.  It  is  at  all  times  of  great  consequence  upon 
questions  of  general  average,  insurance,  salvage,  and  other  controversies, 
in  which  the  ship  or  owners  may  be  involved  in  time  of  peace,  and  the 
predicaments  in  which  tiic  vessel  may  be  found  in  time  of  war. 

*  Tliompson  V.  Busch,  4  Washington's  R.  338. 

*  Consolalo,  ut  supra. 


96  OFFICE  OF  THE  MATF-. 

tent  to  liis  duties  could  be  displaced  by  the  master;  and 
he  miiiht  be  compelled  to  i)ay  any  damaii;e  that  had  re- 
sulted from  his  want  of  skill;'  and  the  Danish  code  in- 
flicts capital  punishment,  if  he  is  unable  to  make  good  such 
damaiic.-  It  has  been  held  in  some  of  our  own  courts, 
that  the  mate  may  forfeit  his  right  to  command  and 
wages,  by  fraudulent,  unfaithful  and  illegal  practices,  by 
gross  and  repeated  negligence,  or  flagrant,  wilful  and  un- 
justifiable disobedience,  by  incapacity  brought  upon  him 
by  his  own  fault,  or  palpable  want  of  skill  in  his  pro- 
fession ;  but  the  causes  of  removal  should  be  evident, 
strong,  and  legally  important.^  It  has  also  been  con- 
sidered that  the  ground  upon  which  the  contract  may 
thus  be  rescinded  by  the  master,  for  incompetency,  is  an 
actual  or  constructive  fraud  of  the  seaman  in  representing 
himself  competent ;  but  if  the  master  took  him  with  a 
previous  personal  knowledge  of  his  capabilities,  he  can- 
not afterwards  displace  him  for  want  of  professional  skill 
alone. ^  This  must  be  restricted,  however,  to  the  case 
of  a  party  originally  ship})ing  in  the  character  of  mate, 
or  other  particular  capacity,  and  making  his  contract  for 
the  office ;  for  it  seems  that  temporary  appointments 
made  by  the  master  during  the  voyage  are  held  more  at 
his  pleasure.^ 

'   Consolato  del  Mare,  ut  supra. 

*  Jacobsen's  Sea  Laws,  book  2,  ch.  2. 

'  Thompson  v.  Busch,  4  Washiugton's  R.  338.  Atkyns  v.  Burrows,  1  Pe- 
ters's  Adra.  R.  244.  Mitchell  v.  The  Orozitnho,  1  Pcters's  Adm.  R.  250. 
See  also  Robineit  v.  The  Exeter,  2  Robinson's  Adm.  R.  261. 

*  Mitchell  V.  The  Orozimbo,  ut  supra. 

*  Wood  et  al.  v.  The  Nimrod,  Gilpin's  R.  83. — There  is  no  positive  rule 
of  law,  applicable  to  all  cases,  so  far  as  I  am  informed,  which  requires  that 
the  mate  should  be  possessed  of  the  nautical  skill  and  science  of  a  navi- 


MATE'S  AUTHORITY  AND  OFFICE.  97 

The  general  standing  of  officers,  when  they  are  sought 
to  be  affected  with  charges  of  negligence,  disobedience, 
or  other  offences,  or  incapacity,  does  not  differ  materially 
from  that  of  the  other  seamen,  except  so  far  as  the  greater 
responsibility   of  their  official  stations   requires  of  them 

gator.  Much  must  depend  upon  the  nature,  objects  and  extent  of  the 
voyage,  as  to  whether  the  contract  of  the  mate  can  be  considered  to  imply 
that  he  is  any  tiling  more  than  a  good  seaman.  In  matters  of  insurance, 
it  has  been  considered  that  the  question  whether,  in  order  to  the  seawor- 
thiness of  a  vessel,  the  mate  ought  to  be  a  navigator,  capable  in  that  par- 
ticular, as  in  all  others,  of  taking  the  command,  on  the  death  or  other  re- 
moval of  the  master,  is  a  question  o(  fact  for  the  jury.  Lord  Tenterden 
once  instructed  a  jury,  {Clifford  v.  Hunter,  3  Carr.  and  Pa.  16,)  that  a  ship 
is  not  seaworthy  for  a  voyage  from  India  to  England,  with  no  other  person 
on  board  capable  of  commanding  but  the  captain  ;  and  the  jury  so  found, 
under  his  Lordship's  directions.  But  this  doctrine  has  been  strongly  ques- 
tioned by  some  eminent  jurists  in  this  country.  A  case  lately  arose  ia 
Canada,  upon  policies  of  insurance  on  a  voyage  from  Quebec  to  Jamaica 
and  back,  the  vessel  being  a  schooner  of  one  hundred  and  fifty-six  tons.  At 
Jamaica,  the  master  was  removed,  the  mate  promoted  to  his  place,  and  one 
of  the  seamen,  who  could  not  write  and  was  not  what  is  called  a  navigator, 
was  promoted  to  the  station  of  the  mate,  and  acted  as  such  on  the  retura 
voyage.  The  vessel  was  wholly  lost  on  her  return  voyage  in  a  violent 
storm,  but  not  from  any  fault  or  insufficiency  of  the  person  acting  as  mate, 
or  any  want  of  skill  or  knowledge  in  the  person  acting  as  master.  The 
payment  of  the  policies  was  resisted,  on  the  ground  that  the  vessel  could 
not  be  deemed  seaworthy,  she  not  having  on  board  a  mate  or  any  other 
person  capable  of  taking  the  command  in  the  event  of  an  accident  hap- 
pening to  disqualify  the  master.  Before  the  cause  came  on  for  trial  in  tlie 
Queen's  Bench  at  Quebec,  the  plaintiffs  took  the  opinions  of  Chancellor 
Kent,  and  Professor  Grcenlcaf,  of  the  United  States,  and  the  Attorney 
General  of  England,  Sir  J.  Campbell.  The  last  two  of  these  eminent  per- 
sons were  of  opinion  that  there  is  not  any  fixed  rule  of  law  which  makes 
it  necessary  that  the  mate  should  be  a  navigator  capable  of  keeping  the 
ship's  reckoning,  in  all  cases,  be  the  voyage  what  it  may  ;  Iku  iliat  it  was 
a  question  of  fact  for  the  jury  upon  the  circumstances  and  nature  of  the 
particular  voyage.  Chancellor  Kent's  opinion  was  given  somewhat  more 
explicitly  against  the  position  of  Lord  Tenterden,  and  he  also  denies  the 
existence  of  any  such  rule  as  that  referred  to.  See  Laiv  Reporter^  vol.  ii, 
p.  257,  Boston,  January,  1840. 

\3 


98  MATE'S  AU'I'IIORITY  AND  OfTICi:. 

a  proportionate  degree  of  vigilance.  Tims  tlie  offence 
of  sleeping  upon  his  watch,  in  the  case  of  a  common  sea- 
man, is  very  serious ;  in  the  case  of  a  mate  it  would  be 
far  more  serious.'  It  seems,  however,  that  the  Courts  of 
Admiralty  \\ill  require  a  degree  of  evidence  to  inculj)ate 
an  officer  somewhat  })roporlionate  to  his  responsibilities. 
Lord  Stowell  has  laid  it  down,  that  officers  come  before 
the  court  with  as  strong  a  title  to  indulgence  and  favora- 
ble attention  as  common  mariners,  inasmuch  as  an  injury 
done  to  their  characters  is  of  wider  extent,  and  is  attend- 
ed with  consequences  of  a  more  serious  nature.  "  These 
considerations,"  he  observes,  "  are  sufficient  to  place  offi- 
cers also  under  the  particular  protection  of  the  Court ; 
at  the  same  time,  this  must  not  be  so  understood  in  either 
case,  as  if  the  Court  would  show  such  a  blind  indulgence, 
as  should  overrule  the  real  Justice  of  the  case ;  it  is  only 
such  an  indulgence  as  the  equitable  considerations  of 
public  utility  require,  which  can  seldom  in  such  cases, 
any  more  than  in  others,  be  separated  from  particular 
justice."^ 

The  mate,  as  the  next  highest  officer  on  board,  suc- 
ceeds to  the  rights  and  authority  of  the  master,  in  all 
cases  where  the  latter  is  dead  or  absent.^     The  govern- 

»  By  the  Consolato,  the  mate  was  forbidden  to  undress  himself,  while 
sleeping,  when  in  health;  a  provision  which,  though  it  cannot  now  be  con- 
sidered to  form  a  rule  in  maritime  service,  marks  the  high  degree  of  vigi- 
lance that  has  been  exacted  of  these  officers.  Ch.  17,  [62].  See  also 
UOrd.  de  la  Marine,  liv.  2,  tit.  7,  art.  8. 

*  Rohinctl  v.  The  Exeter,  2  Robinson's  Adm.  R.  261. 

'  Orne  v.  Townsend,  4  Mason's  R.  541.  The  George,  1  Sumner's  R. 
151.  United  States  v.  Taylor,  2  Sumner's  R.  584.  The  proposition  stated 
in  the  text  is  true  not  only  in  respect  to  the  government  of  the  crew,  &c., 
but  also  in  respect  to  the  master's  duties  as  agent  of  the  owners.  In  Par- 
meter  V.  Todhuhter,  1  Camp.  N.  P.  R.  541,  Lord  EUenborough  held  that, 


MATE'S  AUTHORITY  AND'  OFFICE.  99 

ment  and  management  of  the  crew  are  devolved  upon 
him,  with  the  same  rights  and  responsibilities  as  belong- 
•ed  to  the  master  :  and  if  a  seaman  be  wrongfully  dis- 
missed by  him,  on  a  temporary  absence  of  the  master, 
the  owners  are  liable  therefor,  as  the  act  of  their  agent.^ 
But  while  the  master  is  on  board,  neither  the  mate,  nor 
any  other  subordinate  officer  has  authority  to  inflict  pun- 
ishment on  a  seaman,  for  any  cause,  or  at  any  time,  ex- 
cept when  it  is  at  the  moment  absolutely  required  by 
the  necessities  of  the  ship's  service  to  compel  the  per- 
formance of  duty.^  It  has  already  been  seen,  that  the 
presumption  that  all  punishment,  as  such,  proceeds  from 
the  authority  of  the  master,  is  carried  so  far,  that  he  is, 
when  present,  presumed  to  adopt  the  conduct  of  his  offi- 
cer, and  is  held  liable  as  a  joint  trespasser,  if  the  punish- 
ment is  excessive,  unless  he  interferes  to  prevent  or 
restrain  it.^ 

in  case  of  capture  and  recapture,  in  the  absence  of  the  master,  the  mate 
had  a  riglit  to  hypothecate  the  ship  for  the  purpose  of  paying  the  salvage 
to  the  recaptors.  When  the  mate  succeeds  to  the  master,  by  the  death  or 
other  removal  of  the  latter,  he  sues  in  the  Admiralty  for  his  wages,  as  a 
male  acting  as  master.  The  George,  1  Sumner's  R.  151.  The  Favorite, 
2  Robinson's  Adm.  R.  232. 

•  Orne  V.  Toivnsend,  4  Mason's  R.  541. 

•  Thomas  v.  Lane,  2  Sumner's  R.  1.  United  Slates  v.  Taylor,  Ibid.  584. 
Elwell  V.  Martin,  Ware's  R.  53.  Ward  v.  Ames,  9  Johns.  R.  133.  Butler  v. 
M'Lellan,  Ware's  R.  219.  Rice  v.  The  Polly  and  Kitty,  2  Peters's  Adra.  R. 
420. 

'  Ante,  p.  26.  The  authorities  are  the  same  as  last  cited.  In  Butler  v. 
M'Lellan,  where  the  master  and  mate  were  jointly  sued  in  the  Admiralty 
by  a  seaman  for  an  assault  and  battery,  and  it  appeared  thai  the  mate,  by 
order  of  the  master,  assisted  in  some  of  ihc  acts  complained  of,  it  was  held 
that  the  mate  miglit  be  justifn-d  for  assisting  in  obedience  to  the  master's 
orders,  though  the  ronduct  of  ilie  master  might  have  been,  on  the  whole, 
illegal  and  unjustifiable;  and  that  the  libel,  in  such  case,  migbt  be  dis- 
missed in  respect  to  the  male,  and  he  made  a  witness  for  the  master.     But 


100  MATE'S  RRSPONSIBILTTY  FOR  LOSSES. 

Ill  respect  to  the  responsibility  of  the  mate  for  losses 
of  the  cargo,  it  may  be  said,  that  if  he  is  guilty  of  gross 
negligence  in  any  point  which  upon  evidence  is  shewn 
to  be  peculiarly  his  duty,  he  alone  is  responsible.  But 
otherwise,  it  seems  that  the  responsibility  is  to  be  borne 
equally  by  all  the  crew,  in  proportion  to  their  wages. ^ 
So  too,  it  has  been  held  in  England,  that  if  the  mate 
interfere  with  the  responsibility  resting  upon  another 
person — as  a  wharfinger  who  is  by  the  usage  responsi- 
ble for  the  safe  delivery  of  goods  on  board  the  vessel, 
and  the  mate,  in  his  absence,  undertakes  to  remove  any 
merchandise,  and  it  is  lost,  though  by  accident  —  the 
owners  will  have  a  right  to  deduct  its  value  from  his 
wages.^ 

in  Elwell  v.  Martin,  it  was  held  that  if  there  be  any  evidence  to  inculpate 
the  mate  in  tlie  illegal  severity  of  the  punishment,  or  in  the  unjustifiable 
assault,  the  dismissal  of  the  libel  as  to  him  cannot  be  demanded  as  a  mat- 
ter of  right. 

»  Wilson  V.  The  Belvidere,  1  Peter's  Adm.  R.  258. 

*  The  Neiv  Phanix,  H.  Court  of  Admiralty,  February,  1833,  cited  from 
Steele's  Ship  Master's  Assistant,  p.  16.  (Lond.  1837.) 


CHAPTER  III. 

OF    THE    SUBSISTENCE   AND    SICKNESS    OF    THE   MARINERS. 

It  has  already  been  stated  that  subsistence,  unless  the 
contrary  is  expressed  in  the  contract,  or  implied  in  the 
usages  of  a  particular  trade  —  as  it  is  in  some  of  the  fish- 
ing voyages  of  New  England  —  is  to  be  taken  as  part  of 
the  contract,  and  as  wages  paid  in  another  form.^  From 
the  earliest  times,  it  has  been  a  maritime  usage  for  the 
owners  and  master  to  furnish  the  subsistence  of  the  mar- 
iners, as  a  part  of  the  compensation  for  their  services,  and 
this  usage  seems  to  be  universal,  with  a  few  local  excep- 
tions. The  ancient  marine  ordinances  recognised  this 
obligation  of  the  master  and  owners,  and,  like  the  statu- 
tory law  of  modern  states,  entered  into  particular  regula- 
tions of  this  general  duty.^  The  ordinance  of  Louis  XIV. 
does  not  contain  such  regulations,  but  it  enacts  severe 

'  Ante  p.  27. 

*  Loti  D'Olcron,  art.  17.  Pardcssus,  tomei,  p.  335.  Loisde  Westcapdle, 
Jugement  17.  Iljid.p.  3S1.  Droit  Mar.  de  Wisbuy,7ix\.  22.  Ibid.  p.  483. 
Droit  Mar.  de  la  Ligue  Anscutique,  ch.  9,  Reds,  de  1591,  Pardtssus,  tome 
ii,  p.  510.  Tlie  Consulate  of  the  Sea  has  a  chapter  entitled,  "  of  the  sub- 
sistence which  tlie  master  is  to  give  the  seamen,"  which  enters  into  minute 
regulations  respecting  the  food  to  be  furnished  on  lay-days,  and  the  changes 
to  be  observed  on  the  solemn  festivals  of  the  church.  Consvlato  del  Mare, 
ch.  100,  [145]  Pardessui,  tome  ii,  p.  130. 


102  SUBSISTENCE  OF  SEAMEN. 

penalties,  desin;ned  to  protect  the  provisions  of  the  ship 
against  waste  or  loss,  and  an  aiitliority  to  the  master  to 
make  use  of  the  private  stores  of  any  persons  on  board 
when  the  shi])'s  provisions  fail.' 

The  Leiiislature  of  this  country  has  so  far  regulated  this 
general  duty  of  the  owners  and  master,  as  to  provide 
that  every  ship  or  vessel  of  one  hundred  and  fifty  tons 
burthen,  or  more,  bound  on  a  voyage  across  the  Atlantic 
ocean,  shall,  at  the  time  of  leaving  the  last  port  from 
whence  she  sails,  have  on  board,  well  secured  under  deck, 
at  least  sixty  gallons  of  water,  one  hundred  pounds  of 
salted  flesh  meat,  and  one  hundred  pounds  of  wholesome 
ship-bread,  for  every  person  on  board  such  ship  or  vessel, 
over  and  besides  such  other  provisions,  stores  and  live 
stock,  as  shall,  hy  the  master  or  passengers,  be  put  on 
board,  and  in  like  proportion  for  shorter  or  longer  voyages ; 
and  in  case  the  crew  of  any  ship  or  vessel,  which  shall 
not  have  been  so  provided,  shall  be  put  upon  short  allow- 
ance in  water,  flesh,  or  bread,  during  the  voyage,  the 
master  or  owner  of  such  ship  or  vessel  shall  pay,  to  each 
of  the  crew,  one  day's  wages  beyond  the  wages  agreed 
on,  for  every  day  they  shall  be  so  put  to  short  allowance, 
to  be  recovered  in  the  same  manner  as  their  stipulated 
wages.^ 

'  rOrd  de  la  Marine,  liv.  2,  tit.  1,  art.  31,  32,  33,  34;  tit.  7,  art.  6,  7. 

*  That  every  ship  or  vessel,  belonging  as  aforesaid,  bound  on  a  voyage 
across  the  Atlantic  ocean,  shall,  at  the  time  of  leaving  the  last  port  from 
whence  she  sails,  have  on  board,  well  secured  under  deck,  at  least  sixty 
gallons  of  water,  one  hundred  pounds  of  salted  flesh  meat,  and  one  hundred 
pounds  of  wholesome  ship-bread,  for  every  person  on  board  such  ship  or 
vessel,  over  and  besides  such  other  provisions,  stores  and  live  stock,  as  shall, 
by  the  master  or  passengers,  be  put  on  board,  and  in  like  proportion  for 
shorter  or  longer  voyages ;  and  in   case  the   crew  of  any  ship  or  vessel, 


SUBSISTENCE  OF  SEAMEN.  103 

The  parties  within  the  protection  of  this  law  are  as 
well  the  seamen  shipped  in  a  foreign  port,  as  those  ship- 
ped at  the  port  of  departure.'  The  voyages  within  tiie 
operation  of  the  law  are  all  voyages  across  the  Atlantic 
Ocean  ;  and  I  understand  the  words  "  and  in  like  pro- 
portion for  shorter  or  longer  voyages,"  to  extend  the  pro- 
visions of  the  law  to  all  other  voyages,  in  proportion  to 
their  duration,^  The  only  ground  for  establishing  a  claim 
for  extra  wages,  under  the  law,  is  a  negligence  in  the 
master  or  owner  in  not  furnishing  the  ship,  before  her  de- 
parture from  the  last  port  whence  she  sails,  with  the 
quantity  and  sj)ecies  of  provisions  and  water  required.^ 
If  the  provisions  fail  during  the  voyage,  from  inevitable 
accident,  the  master  is  not  responsible.  If  he  is  called 
upon  by  the  laws  of  humanity  to  dispose  of  part  of  them 
to  a  ship  in  distress  at  sea,  and  is  thereby  compelled  to 
put  his  own  crew  on  short  allowance,  there  can  be  no 
claim  for  extra  wages  under  the  law,  unless  he  receives 
a  compensation   for  the   provisions,   in  which  event,  it 


which  shall  not  have  heen  so  provided,  shall  be  put  upon  short  allowance  in 
water,  flesh,  or  bread,  during  the  voyage,  tlic  master  or  owner  of  such  ship 
or  vessel  shall  pay,  to  each  of  the  crew,  one  day's  wages  beyond  the  wages 
agreed  on,  for  every  day  they  shall  be  so  put  to  short  allowance,  to  be  re- 
covered in  the  same  manner  as  their  stipulated  wages.  AclU,  S.  20  July, 
1790,  ch.  5G,  sec.  9. 

'  Gardner  V.  Skip  New  Jersey,  1  Peters's  Adm.  R.  223.  See  also  Story's 
Notes  to  Abbot  on  Shipping,  p.  135. 

*  This  construction  of  the  law  I  am  led  to  adopt,  partly  from  the  words 
themselves,  and  partly  upon  the  use  of  similar  words  in  the  Act  regu- 
lating' passmfrrr  ships  and  vessels,  (Act  U.  S.  2d  March,  1S19,  sec.  3,) 
where  a  slight  variation  of  phraseology  clearly  shows  the  intention  of 
the  Legislature  to  include  all  voyages,  both  across  the  Atlantic  and  else- 
where. 

'  Manners  v.  'J'hc  Washinglon,  1  Peters's  Adm.  R.  219. 


104  SUBSISTENCE  OF  SEAMEN. 

would  seem  rrasouablo  that  it  should  bo  shared  by  those 
at  whose  sacrifice  it  is  obtained.^ 

Where  tlie  particular  species  of  provisions  specified  in 
the  statute  can  be  procured  at  the  port  of  departure,  no 
equivalents  can  be  admitted  as  substitutes.  But  it  has 
been  considered,  in  the  District  Court  of  the  United 
States  for  Pennsjlvania  District,  that  in  ports,  where  the 
specific  articles  cannot  be  obtained,  other  good  and  whole- 
some esculents  may  be  substituted  within  the  policy  of 
the  Act.-  The  contrary  opinion,  however,  seems  to  have 
been  acted  upon  in  the  District  Court  of  the  United 
States  for  South  Carolina  District,  where  it  was  held  that 
a  deficiency  of  bread  was  not  compensated   by  a  great 


'  "  In  like  manner,"  say  the  Laws  of  the  Hanse  Towns,  "  it  is  forbidden 
to  every  master  to  sell  the  provisions  of  the  ship,  whether  at  sea  or  in  a 
foreign  country,  save  when  it  happens  at  sea  that  persons  have  need  of 
them,  to  whom  he  ought  to  part  wilii  them /or  the  Christian  c/iarity  nf  pre- 
serving their  lives.'"  {Droit  Mar.  de  la  Liguc  Ansealique,  cli.  9,  Reces  de  1591, 
Pardessus,  tome  ii,  p.  510.)  The  Marine  Ordinance  of  Lonis  XIV. 
contained  similar  prohibitions  against  a  sale  of  the  provisions,  with 
the  same  exception,  which,  however,  was  restricted  to  allowing  a  sale 
only  when  there  should  be  a  sufficiency  left  for  the  wants  of  the  ship's 
company.  {U Ord.  de  la  Marine,  liv.  2,  tit.  1,  art.  33.  "The  charity," 
says  Valin,  "  which  obliges  one  to  assist  a  neighbor  in  distress,  does 
not  go  the  length  of  requiring  that  one  should  put  oneself  in  the 
same  predicament."  (Valin,  Com.  tome  i,  p.  457,  458.)  This  is  merely 
a  parapiirase  of  the  old  maxim,  "charily  begins  at  home,"  which  has  as 
little  appropriate  application  to  the  duty  of  rendering  assistance  to  per- 
sons in  distress  at  sea,  as  it  has  to  all  other  moral  duties  of  benevolence; 
if  possible,  even  less.  The  true  question,  under  which  a  master  would 
justify  his  conduct  towards  his  own  crew,  would  be,  whether  the  actual 
distress  of  others  required  him  to  part  with  a  portion  of  his  stores:  and  if 
such  were  the  fact,  I  have  no  doubt  that  he  would  have  a  right  to  put  his 
own  crew  on  short  allowance  until  he  should  reach  a  port  where  the  pro- 
visions could  be  replaced,  without  incurring  the  penalty  of  the  statute. 

*  Mariners  v.  The  Washington,  1  Peters's  Adm.  R.  219. 


SUBSISTENCE  OF   SEAMEN.  105 

overplus  of  beef  and  water.^  These  two  cases  were 
for  many  years  the  only  decisions  in  print  upon  this 
question  arising  under  the  statute;-  but  in  a  recent  case 
in  the  District  Court  of  the  United  States  for  Maine 
District,  Judire  Ware  observes  that  the  statute  does  not 
in  terms  admit  of  any  substitutes  for  the  kinds  of  pro- 
visions prescribed;  but  that  courts  have  thought  that 
when  a  vessel  happens  to  be  in  a  port  where  it  is  not  in 
the  power  of  the  master  to  obtain  provisions  of  the 
amount  and  description  directed  by  the  law,  other  articles 
may  be  substituted  wiiich  are  of  equivalent  value;  and 
he  refers  to  the  case  in  Pennsylvania.  "  This  tempera- 
ment," he  adds,  "  has  been  introduced  in  the  construc- 
tion of  this  statute,  upon  the  reasonable  presumption  that 
the  law  does  not  intend  to  require  of  the  master  impossi- 
bilities. But  when  the  courts  by  an  equitable  construc- 
tion have  introduced  a  qualification,  and  liberated  the 
owners  from  the  ])enal  operation  of  the  law  against  its 
letter,  they  are  bound  to  see  that  the  substitutes  offered 
are  a  full  equivalent  both  in  quantity  and  quality  for  those 
required  by  the  text  of  the  law ;  the  more  so,  as  the 
policy  of  the  law  addresses  itself  to  the  interests  of  hu- 
manity."^ 

In  a  case  of  a  vessel  going  to  a  port  voluntarily, 
where  bread,  it  is  known,  cannot  ordinarily  be  obtain- 
ed, would  it  not  be  gross  negligence  in   the  master  not 


'   Coleman  v.  Dn;^  JJarriot,  Bee's  Adm.  R.  80. 

•  The  former  was  decided  in  1806,  and  the  latter  in  179G.  In  the  last 
edition  of  Ahbol  on  Shipping,  Mr.  Justice  Story  observes  that  this  question 
has  never  been  a  subject  of  discussion  in  the  lii£;her  appellate  courts;  of  the 
United  States,  within  his  knowledge.     Edit.  1829,  p.  135,  note. 

»   The  Mary,  Ware's  R.  459. 

14 


106  SICKNESS  OF  SEAMEN. 

to  take  a  full  supply  of  bread  al  the  port  of  departure  ? 
Impossibility,  in  sueh  eases,  cannot  apply  as  an  excuse, 
where  it  ougiit  to  have  been  foreseen  and  guarded  against. 

It  lias  been  considered  that  whether  the  required  quan- 
tity of  provisions  is  on  board  or  not,  it  is  the  duty  of  the 
master  to  oversee  and  regulate  their  expenditure.  It  does 
not  follow  that  because  they  are  dealt  out  in  fixed  and 
limited  (|uantities,  that  tlie  men  are  put  on  short  allow- 
ance. It  must  be  shown  that  the  allowance  is  not  in  a 
resonable  amount ;  not  enough  for  the  ordinary  consump- 
tion of  a  man.  What  that  reasonable  quantity  is,  has  not 
been  determined  by  the  statute.  But  in  fixing  the  ra- 
tions of  the  navy,  the  Legislature  have  shown  what  they 
consider  a  proper  allowance,  and  the  courts  have  assumed 
it  as  the  standard  by  which  the  allowance  in  the  merchant 
service  ought  to  be  regulated.' 

As  the  right  to  receive  subsistence,  so  also  the  right  of 
the  seaman  to  be  cured  at  the  expense  of  the  ship  of 
sickness  and  injury  occurring  to  him  while  in  the  ship's 
service,  constitutes  in  the  general  maritime  law  a  part  of 
the  contract  for  wages,  and  is  a  material  ingredient  in  the 
compensation  for  his  labor  and  services.  This  principle 
may  be  traced  with  remarkable  uniformity  through  the 
marine  laws  and  ordinances  of  all  maritime  states  ;^  it  has 

'  The  Mary,  Ware's  R.  460.  Mariners  v.  The  Washington,  1  Peters's 
Adm.  R.  219.     Gardner  v.  Ship  Nciv  Jersey,  1  Peters's  Adra.  R.  233. 

*  Jugcmens  D'Oleron,  art.  6,  7,  Pardessus,  tome  i,  p.  327.  Lois  de  West- 
capelle,  Jugement  6,  7,  Pardessus,  tome  i,  p.  374.  Droit  Mar.  de  Wisbmj, 
art.  20,  21,  Pardessus,  tome  i,  p.  473,  474.  Droit  Mar.  de  la  Ligue,  Ansea- 
tique,  art.  46,  (Reces  de,  1591,)  Pardessus,  tome  ii,  p.  521.  Droit  Mar.  de 
la  Suede,  ch.  12,  Pardessus,  tome  iii,  p.  141.  Droit  Mar.  de  Hambourg,  art. 
30,  Pardessus,  tome  iii,  p.  374.  Droit  Mar.  de  la  Russie,  tit.  2,  art.  510, 
Pardessus,  tome  iii,  p.  518.     UOrd,  de  la  Marine,  liv.  3,  tit.  4,  art.  11. 


SICKJSrESS   OF   SEAMEN.  107 

been  recognised  as  a  universal  rule  bj  the  text  writers 
of  France  and  England/  and  fully  carried  into  effect  by 
the  courts  in  this  country.^ 

The  subject  is  of  so  much  practical  importance,  that 
it  is  material  to  state  the  principles  of  the  general 
maritime  law,  which  define  the  duties  of  the  owner  and 
master,  and  the  rights  of  the  seamen.  In  the  first  place, 
the  sickness  or  injury,  of  which  the  mariner  may  claim  to 
be  cured  at  the  expense  of  the  ship,  must  occur  to  him 
in  the  service  of  the  ship,  and  must  not  be  occasioned  by 
his  own  faults  or  vices,  or  while  absent  upon  his  own 
business  or  pleasure,  or  without  permission.  Thus  the 
Laws  of  Oleron,  of  Wisbuy  and  of  Westcapelle,  provide  in 
terms  that  the  illness  must  occur  in  the  ship's  service.^ 
The  same  limitation  is  to  be  inferred  from  the  Laws 
of  the  Hanse  Towns  and  the  maritime  law  of  Rus- 
sia;'' it  is  also  contained  in  the  French  Ordinance,  and 
Pothier  and  Valin,  in  commenting  upon  the  provision, 
expressly  define  it  as  limiting  the  right  of  cure  to  dis- 
eases occurring  naturally,  while  in  the  service  of  the  ship, 


Code  de  Commerce,  art.  262,  263,  (liv.  2,  tit.  5.)     Jacobsen's  Sea  Laws, 
book  2,  ch.  2.     Act  5  and  6  Wm.  4,  ch.  19,  sec.  18. 

'  Valin,  Com.  tome  i,  p.  721,  et  seq.  Sautayra,  Sur  Code  de  Com.  p.  171, 
(Paris,  1836.)  Pulhier,  Louages  Mar.  n.  188,  189,  190,  191.  MoUoy,  book 
2,  ch.  3,  sec.  5.  Abbot  on  Shipping,  part  2,  ch.  4,  sec.  14.  2  Brown  Civ. 
and  Adm.  Law,  182,  183,  184. 

*  Harden  V.  Gordon,  2  Mason's  R.  541.  Reedy.  Canfield,  1  Sumner's  R. 
195.  Pierce  V.  TAe  f;n<er;jme,  Gilpin's  R.  435.  Walton  v.  The  Neptune, 
Peters's  Adm.  R.  142,  152.  Tlie  Nimrod,  Ware's  R.  9.  The  Forest,  Ibid. 
420. 

'  Jufremens  D' Oleron,  an.  7.  Droit  Mar.  de  Wisbuy,  art.  21.  Lois  de 
Westcapelle,  Jugement  7,  ut  supra. 

*  Droit  Mar.  de  la  Ligue,  Ans.  art.  46,  ut  supra.  Droit  Mar.  de  la  Russie, 
ut  supra. 


108  SICKNESS  OF   SEAMEN. 

and  not  bv  dobaijcliery  or  ciiinc'  In  fact,  sevcrnl  of  the 
elder  ord'manees  give  instances  in  whieh  the  cure  is  ex- 
ehidt  (1  iVeni  being  a  charge  on  the  sliij)  ;  as  where  the 
seamen  go  on  shore  without  permission,  and  get  intoxi- 
cated and  tluMeby  injured  :-  and  the  same  exclusion  of 
tlie  case  of  absence  without  leave  is  made  in  the  French 
law.^ 

'  VOrd.  de  la  Marine,  liv.  3,  tit.  4,  art.  11.  Valin,  Com.  tome  i,  p.  721, 
et  seq.     Pothier,  Loiiages  Mar.  n.  190. 

'  Jugemcns  D'Ohron,  art.  6,  Loin  de  WestcapeJle,  art.  6.  Droit  Mar.  de 
Wislnit/,  art.  20,  ui  supra. 

3  VOrd.  de  U  Marine,  liv.  3,  tit.  4,  art.  12.  Code  de  Commerce,  art. 
264.  Tlie  principle  by  which  the  cure  of  injuries,  occurring  in  the 
service  of  the  ship,  is  made  a  charge  on  the  vessel,  obviously  in- 
cludes wounds  and  injuries  received  in  its  defence  against  pirates  or 
an  enemy.  These  are  in  the  first  instance  a  charge  upon  the  vessel; 
■whether  they  ought  not  also  to  be  considered  as  general  average  upon 
ship  and  cargo,  does  not  seem  to  nie  to  be  eniirely  beyond  doubt.  Mr.  Ste- 
vens enumerates  these  claims  for  general  average  among  those  which  are 
"dij^putcd  or  doubtful;"  and  in  a  note  he  cites  ihe  case  of  Taylor  et  al.  v. 
Curtis,  (4  Camp.  N.  P.  R.  337,)  in  which,  among  oilier  items  claimed  as 
general  average  —  such  as  damage  to  the  vessel,  in  an  engagement,  and 
expenditure  of  powder,  &c.,  —  one  for  the  cure  of  seamen  wounded  in  de- 
fence of  the  ship  was  also  rejected;  and  the  American  Editor  of  Stevens 
and  Benecke  also  states  that  these  claims  are  not  subjects  of  contribution 
in  general  average  in  Great  Britain  and  the  United  States.  (Stevens  and 
Benecke  on  Average,  by  Phillips,  p.  86,  87,  n.)  It  may  not  be  the  practice, 
in  either  country,  to  treat  these  claims  as  general  average;  and  if  the 
learned  Editor  acquiesces  in  the  principle  on  which  they  are  rejected,  I  am 
uot  disposed  to  controvert  so  respectable  authority.  But  I  cannot  forbear 
to  call  the  reader's  attention  to  the  provisions  of  the  French  law,  and  the 
principles  on  which  the  French  jurists  vindicate  those  provisions.  The 
cure  of  seamen  thus  wounded  is  declared  positively  to  be  a  subject  of  gene- 
ral average,  both  in  the  Ordinance  of  Louis  XIV.  and  the  Code  Napoleon. 
{L'Ord.  de  la  Marine,  liv.  3,  tit.  4,  art.  11.  Code  de  Commerce,  art.  263.) 
The  commentators  assign  as  the  reason  for  this  provision,  that  the  injury 
is  received  in  exertions  for  the  common  safety  of  both  ship  and  cargo. 
This  fact  might  not  alone  be  decisive;  because  the  ordinary  ship's  duty  in- 
volves the  safety  of  both  ship  and  cargo,  and  Pothier  admits  that  injuries 


SICKNESS   OF   SEAMEN.  109 

The  extent  of  the  right  of  cure  is  defined  by  the  for- 
mulary in  which  the  principle  is  stated,  when  it  is  said 
to  apply  to  all  sickness  and  injuries  occurring  while  the 
partv  is  in  the  ship's  service.  The  rule  does  not  em- 
brace any  distinction  as  to  the  place  where  the  sickness 
or  injury  may  occur — whether  on  the  voyage,  in  a  for- 
eign or  a  home  port.  The  voyage,  so  far  as  the  seamen 
are  concerned,  is  deemed  to  commence,  when  they  are 
to  perforin  service  on  board,  and  to  terminate,  when 
thev  are  discharged  from  farther  service.  All  that  the 
rule  requires  is,  that  the  sickness  or  injury  should  not  be 
occasioned  by  their  own  fault.'     AVhat  is  comprehended 

received  in  the  ordinary  service  {manmwre)  of  the  ship  are  not  a  charge  on 
any  thing  but  the  ship  itself.  The  reason  is,  that  all  the  ordinary  service 
of  the  ship  is  due  to  the  cargo,  by  the  contract  for  the  carriage.  But  that 
contract  does  not  include  an  implied  stipulation  against  a  great  and  extra- 
ordinary peril,  such  as  an  attack  by  an  enemy,  any  more  than  against  ex- 
traordinary perils  of  the  sea.  These  are  both  commonly  excepted  out  of 
it.  The  services,  therefore,  are  extraordinary,  for  the  common  preservation 
of  vessel  and  cargo  from  a  peril,  against  which  the  former  does  not  ex- 
pressly or  by  implication  warrant  the  latter.  Moreover,  Pothier  adds  the 
limitation,  that  unless  the  injury  is  received  in  an  actual  combat,  and  of 
course  unless  the  cargo  is  actually  saved,  by  (hat  combat,  from  foiling  into 
the  hands  of  the  assailant,  there  is  no  claim  for  general  average.  If  these 
two  requisites  concur,  he  is  of  opinion  iliat  all  injuries,  whether  received 
in  arms,  or  in  performing  the  general  ship's  duty,  during  an  actual  engage- 
ment, and  whether  received  by  the  master,  officers,  crew,  or  passengers, 
ousht  to  be  general  average.  (Pothier,  Loua<res  Mar.  n.  143,  191.  See  also 
Valin,  Com.  tome  i,  p.  721.  Sautayra,  Sur  le  Code  de  Com.  \t.  171,  edit.  Paris, 
183G;  and  Story  J.,  in  Reed  v.  Canfield,  1  Sumner's  R.  p.  203,  arguendo.) 
It  may  here  be  mentioned,  that  it  was  considered  in  the  case  just  cited,  that 
when  the  expenses  of  curing  a  seaman  would  be  properly  a  charge  on  the 
ship  alone,  the  principle  is  not  altered  by  the  fact  that  the  seaman  is  in- 
terested in  the  cargo,  or  rather  in  the  proceeds  of  the  cargo,  (as  is  the  case 
in  whalinj;  voyages,)  so  as  to  make  it  a  general  average  upon  ship  and 
cargo  ;  for  liis  interest  is  not  that  of  a  partner. 

'  Rccd  et  al.  v.  Canfield,  1  Sumner's  R.  105.     In  this  case,  a  seaman's 


110  SICKNESS  OF   SEAMEN. 

in  tlio  nilo,  as  tliat  which  tlu^  owners  are  Lound  to  fur- 
nisl),  is  not  merely  medicine  and  medical  advice,  but 
nursing,  diet  and  lodging,  if  the  seaman,  with  or  without 
his  own  consent,  be  carried  on  shore.^  On  the  other 
hand,  tlie  rule  is  limited  to  the  cure  of  the  sickness  or 
injurv,  and  does  not  include;  any  compensation,  or  allow- 
ance lor  the  effects  of  the  injury.  So  far,  and  so  far 
only,  as  expenses  are  incurred  in  the  cure,  whether  they 
are  of  a  medical  or  other  nature,  for  diet,  lodging,  nurs- 
ing or  other  assistance,  they  are  a  charge  on  the  ship. 
When  the  cure  is  completed,  so  far  as  the  ordinary  medi- 
cal means  extend,  the  owners  are  free  from  all  other 
liability.- 

The  right  to  be  cured  at  the  ship's  expense  extends 
to  the  mate,^  and  it  has  been  thought  that  the  master 
also  is  included.  There  is,  at  least,  no  authority  to  the 
contrary,  so  far  as  my  researches  have  extended.  "  So 
far  as  the  reason  and  policy  of  the  law  go,"  says  Mr. 
Justice  Story,  "  I  can  perceive  no  difference  between  the 
case  of  the  master  and  the  case  of  any  of  the  other  offi- 
cers, or  crew  of  the  ship.  The  interest  of  the  ship-own- 
er is  equally  promoted  in  each  case  by  a  speedy  recovery 
and  return  to  duty ;  and  the  benefit  is  even  of  a  higher 

feet  were  frozen  while  in  the  ship's  boat,  under  the  following  circumstan- 
ces. The  ship,  on  her  return  voyage,  had  arrived  at  the  outer  harbor  of 
her  home  port,  where  she  came  to  anchor.  The  libellant,  who  had  not 
been  discharged,  went  in  the  boat,  with  others  of  the  crew,  to  put  the 
mates  on  shore,  and  on  the  return  to  the  ship,  his  feet  were  frozen.  The 
court  held,  that  the  voyage  was  not  completed,  and  that  the  injury  occurred 
in  the  service  of  the  ship. 

'  Lois  D'Oleron,  art.  7.     Harden  v.  Gordon,  2  Mason's  R.  541. 

*  Reed  v.  Canfield,  ut  supra. 

^  The  Brig  George,  1  Sumner's  R.  151. 


SICKNESS  OF   SEAMEN  — MEDICINE   CHEST.  Ill 

nature,  both  for  the  ship  and  the  voyage.  The  super- 
intending care  and  control  of  the  master  over  all  the 
ship's  concerns  is  of  the  last  importance  to  the  interests 
of  the  owner.  It  must  be  a  sad  and  narrow  policy,  ut- 
terly at  variance  with  the  liberal  forecast  of  the  maritime 
law,  to  make  the  master  perpetually  halt  in  his  duty  from 
the  fear  of  incurring  unreasonable  personal  expenses,  and 
thus  endanger  the  solid  interests  of  the  voyage."  ^ 

In  recognition  of  the  general  principles  of  the  maritime 
law,  and  as  a  regulation  of  the  general  duty  of  the  mas- 
ter and  owners.  Congress  have  provided  "  That  every 
ship  or  vessel,  belonging  to  a  citizen  or  citizens  of  the 
United  States,  of  the  burthen  of  one  hundred  and  fifty 
tons  or  upwards,  navigated  by  ten  or  more  persons  in 
the  whole,  and  bound  on  a  voyage  without  the  limits  of 
the  United  States,  shall  be  provided  with  a  chest  of 
medicines,  put  up  by  some  apothecary  of  known  reputa- 
tion, and  accompanied  by  directions  for  administering 
the  same  ;  and  the  said  medicines  shall  be  examined  by 
the  same  or  some  other  apothecary,  once,  at  least,  in 
every  year,  and  supplied  with  fresh  medicines  in  the 
place  of  such  as  shall  have  been  used  or  spoiled  ;  and  in 
default  of  having  such  medicine  chest  so  provided,  and 
kept  fit  for  use,  the  master  or  commander  of  such  ship 
or  vessel  shall  provide  and  pay  for  all  such  advice,  medi- 
cine, or  attendance  of  physicians,  as  any  of  the  crew 
shall  stand  in  need  of  in  case  of  sickness,  at  every  port 
or  phice  where  the  shiji  or  vessel  may  touch  or  trade  at 
during  the  voyage,  without  any  deduction  from  the  wages 
of  such  sick  seaman  or  mariner."" 

•  77ic  lirig  (icorgc,  1  Sumner's  R.  151. 

*  Act  U.  fc>.  20  July,  1790,  ch.  5G,  sec.  8.     The  burthen  of  proof  of  the 


112  SICKNESS -MEDICINE  CHEST  AND  DIRECTIONS. 

By  a  siibso(}iuMit  Act,  tlie  jirovlsions  of  tliis  statute  are 
cxtcMuicd  to  vessels  of  seventy-live  tons,  or  iii)\vaids,  nav- 
igated witli  six  persons,  or  more,  in  tlie  whole,  bound 
from  the  United  Slates  to  any  port  or  ports  in  the  West 
Indies.' 

How  far  tliis  statute  provision  affects  tlie  general  right 
of  the  mariner  to  he  cured  at  the  ship's  expense,  lias 
been  a  question  of  some  dirticulty;  but  the  result  of  the 
cases  which  have  been  litigated  has  been  to  give  it  a 
clear  construction  upon  some  of  the  points  arising. 

The  Act  applies  only  to  advice,  medicine  and  attend- 
ance of  physicians.  If  the  medicine  chest  and  directions 
are  regarded  as  a  substitute  for  the  regular  administra- 
tion of  medical  advice,  then  the  Act  manifestly  contem- 
plates that  the  sick  seaman  is  on  board,  or  in  a  situation 
to  command  the  use  of  the  medicine  chest  and  direc- 
tions. It  cannot  therefore  be  intended  to  apply  to  cases 
where  the  seaman  is  removed  on  shore,  and  is  deprived 
of  these  benefits.  If  he  is  removed  on  shore,  for  the 
convenience  of  the  ship,  whether  with  his  own  consent, 
or  without  it,  if  he  does  not  draw  his  medicines  from  the 
chest,  or  use  the  medical  directions,  his  expenses  for 
medicines  and  medical  advice  remain  a  charge  upon  the 
ship.^  It  has  been  further  held,  that,  although  the  sea- 
man may  remain  on  board,  yet  if  there  be  no  person  on 
board  by  whom  the  medicines  can   be  administered,  or, 

sufficiency  of  the  medicine  chest  is  always  upon  the  owner.  The  Nimrod, 
Ware's  R.  9.     The  Forest,  Ibid.  420. 

>  Act  U.  S.  2  March,  1805. 

'  Harden  v.  Gordon,  2  Mason's  R.  541.  The  Brig  George,  1  Sumner's 
R.  151.  Wallon  v.  The  Enterprise,  1  Petcrs's  Adm.  R.  152.  Hastings  V. 
The  Happy  Return,  Ibid.  256,  note.     The  Forest,  Ware's  R.  420. 


SICKNESS  — MEDICINE  CHEST  AND  DIRECTIONS.  113 

what  amounts  to  the  same  thhig,  no  person  of  such  intel- 
ligence and  discretion  that  it  would  be  safe  to  intrust 
him  with  a  duty  of  so  much  delicacy  and  responsibility,  the 
sick  seaman  is  entitled  to  the  attendance  of  a  physician 
on  board,  and  to  have  the  physician's  charges  paid  by 
the  owners.^  But  in  the  case  of  an  ordinary  sickness, 
not  infectious  or  dangerous  to  the  crew  so  as  to  render  a 
removal  from  the  ship  prudent  or  necessary,  and  when 
no  such  removal  is  made,  and  the  ship  is  provided  with  a 
proper  medicine  chest  and  directions,  it  has  been  held  by 
another  learned  judge  that  physician's  charges  for  attend- 
ance on  board  are  to  be  paid  by  the  seaman  incurring  them.^ 
Now  the  question  recurs,  whether  the  mariner  is  entitled 
to  be  put  on  shore,  at  his  own  request,  from  a  vessel 
properly  provided  with  a  medicine  chest  and  directions, 
and  to  have  his  physician's  charges  paid  by  the  owners, 
in  any  and  what,  circumstances?  He  had  the  right, un- 
questionably, at  the  maritime  law,  to  be  put  on  shore,  in 
cases  of  serious  and  dangerous  disease,  requiring  the  com- 
forts and  advantages  of  a  lodging  on  shore  and  the  at- 
tendance there  to  be  procured.  The  ancient  marine  or- 
dinances formerly  cited  upon  this  subject,  ^^'hich  are  evi- 
dence of  the  maritime  law,  ^\  ith  marked  uniformity,  di- 
rect the  master  to  place  the  seaman  on  shore,  in  an  inn, 

'  The  Forest,  Ware's  R.  420.  In  this  case,  the  master,  mate,  and  four 
of  the  seamen  were  sick  with  the  yellow  fever  at  the  same  time.  The 
Court  considered,  that  in  so  malignant  a  disease,  where  there  would  be  no 
safety  in  sending  a  common  sailor  to  the  medicine  chest  with  the  printed 
directions  to  sf-rve  out  the  medicines,  the  benefits  of  the  medicine  cliost 
and  the  directions  were  really  inaccessible  to  the  mariner,  and  could  not 
therefore  be  held  to  answer  the  purpose  of  a  substitute  for  regular  medical 
advice,  if  that  is  to  be  regarded  as  the  purpose  of  the  statute. 

*  Holmes  V.  IJulchinxon,  Gilpin's  R.  '117. 

16 


1 14     SICKNESS  — WHKTHF.U  THE  MARINER  CAN  GO  ON  SHORE. 

and  procure  for  him  a  luuso,  or  giv(3  him  an  attendant 
from  the  sliip,  when  he  is  so  ill  that  he  ou^ht  not  to  re- 
main on  board.'     Does  the  act  intend  that  the  medicine 
chest  and   directions,  under  any  and  all   circumstances, 
shall  be  accjuiesced  in  by  the  seaman  as  a  substitute  for 
those  benefits  a\  hich  he  enjoyed  by  the  maritime  law  ? 
Does  it  give  the  master  a  right  to  put  him  on  shore,  for 
the  convenience  of  the  ship,  and  not  leave  the   mariner 
any  right  to  be  put  on  shore  for  his  own   comfort  and 
safety,  in  a  disease  that  is  simply  dangerous   to  himself, 
without  being  mfectious  to  the  rest  of  the  crew  ?     The 
rational    view  of   this    act    seems  to   be  this ;    that   it 
is  a  new  provision,  auxiliary  to   the   maritime  law,  en- 
larging the  means  of  recovery,  by  requiring  the  owners 
to  provide  a  medicine  chest  and  directions  for  the  use  of 
ihe  ship  during  the  voyage,  so  that  the   seamen  taken 
sick  at  sea  may  not  be  without  any  means  of  obtaining 
suitable  remedies.     It  will  be  generally  conceded  that  the 
legislature  intended  a  benefit  to   the  seamen ;  and  it  is 
only  in  this  view  that  any  benefit  can  follow  from  the 
provision ;  for,  in  any  other  view,  it  narrows  their  former 
rights.     The  medicines  and  directions  may  be  of  great 
utility  at  sea :  but  in  port,  in  serious  and  dangerous  dis- 
orders, when  brought  into  comparison  with  the  advan- 
tages of  regular  medical   advice,   they   are   of  no  com- 
parative benefit  whatever.^     So  that,  admitting  the  med- 

'  Sec  the  marine  ordinances  cited  ante. 

*  This  was  the  course  of  reasoning  of  the  court  in  the  case  of  Harden  v. 
Gordon,  2  Mason's  R.  541.  In  a  more  recent  case  in  the  same  court,  Mr. 
Justice  Story,  referring  to  his  former  opinion,  observes :  "  I  then  had,  and 
continue  to  have,  great  doubt,  whether  the  act  ought  to  have  been  allowed 
to  have  any  operation  as  an  exception  out  of  the  maritime  law ;  and 
whether  the  provision  for  a  proper  medicine  chest  was  not  merely  directory, 


SICKNESS  — WHETHER  THE  MARINER  CAN  GO  ON  SHORE.     115 

icine  chest  and  directions  to  be  intended  by  the  act  as  a 
substitute  for  the  attendance  of  a  physician,  they  can 
only  be  so  in  cases  and  under  circumstances  where  they 
are  an  equivalent,  and  can  safely  and  properly  be  relied  on 
alone.  If  learned  judges  have  held  that  the  medicines 
are  of  no  avail,  where .  there  is  no  person  on  board  by 
whom  they  can  be  safely  administered  ;'  or  where,  for 
the  convenience  of  the  ship,  the  mariner  is  removed  be- 
yond their  reach  f  there  seems  to  be  no  good  reason  why 
they  should  not  also  fail  to  be  a  substitute  for  regular 
advice,  where  the  master  cannot,  or  ought  not,  from  the 
nature  and  severity  of  the  disease,  to  assume  the  respon- 
sibility of  treating  it  himself  under  the  directions.  Cases 
requiring  surgical  aid,  and  many  others,  may  be  supposed, 
in  ^^■hich  the  directions  are  of  no  benefit  whatever,  and 
which  no  master  should  undertake  to  manage ;  at  the 
same  time,  the  health  of  the  crew,  or  the  convenience  of 
the  ship,  may  not  require  the  sufferer  to  be  removed ;  yet 
it  would  be  little  short  of  barbarity  to  retain  him  on 
board,  or  to  compel  him,  where  he  before  had  the  right 
of  going  on  shore  for  cure  at  the  ship's  expense,  to  sub- 
mit to  the  imperfect  and  inadequate  remedies  on  board, 
or  to  bear  the  expenses  of  better  remedies  himself. 
Upon  the  whole,  I  concur  in  the  opinion  of  a  learned 
judge  of  great  experience  and  learning,  that  "  the  regu- 
lation of  the  statute  is  limited  to  the  ordinary  cases  of 
illness  on  board  the  ship,  a  sickness  of  such  a  character, 

and  the  omission  made  penal  upon  the  master  personally,  without  the 
slightest  intention  on  the  part  of  Congress  to  interfere  with  the  general 
duties  and  responi^ibilities  of  the  owners,  created  by  the  maritime  law." 
The  ling  Gforge,  1  Sumner's  R.  151. 

'   The  Forest,  Ware's  R.  420. 

*  Harden  v.  Gordon,  2  Mason's  R.  541. 


11 G  SICKNESS  —  HOSPITAL  MONEV. 

tliat  tho  pati(>nt  may  be  and  is  kept  on  board,  and  re- 
ceives, or  may  receive,  thi>  benefit  of  tlii>  mi'dieine  eliest 
and  dirntions,  and  the  advice  and  assistance  of  the  mas- 
ter of  the  sliip,  or  some  other  competent  person  attaclied 
to  the  slii|),  in  the  application  of  the  medical  directions 
accompanyinii,  the  chest,  and  snch  nursiiii;  and  attend- 
ance as  the  situation  of  the  ship  may  admit."  ^ 

The  leijislatnre  has  also  made  provision  for  the  relief 
of  sick  and  disabled  seamen  in  our  own  ports,  by  the 
erection  and  maintenance  of  temporary  and  permanent 
hospitals.  The  master  or  owner  of  every  ship  or  vessel 
of  the  United  States  arriving  from  a  foreign  port  into 
any  port  of  the  United  States,  is  required,  before  such 
ship  or  vessel  is  admitted  to  an  entry,  to  render  to  the 
collector  a  true  account  of  the  number  of  seamen  that 
have  been  employed  on  board  such  vessel  since  she  was 
last  entered  at  any  port  in  the  United  States,  and  to  pay 
to  the  collector  at  the  rate  of  twenty  cents  per  month  for 
every  seaman  so  emi)loyed  ;  ^\  hich  sum  the  master  or 
owner  is  authorized  to  retain  out  of  the  wages  of  such 
seamen.^  The  same  provision  is  made  in  the  case  of 
seamen  employed  in  the  coasting  trade  ;  the  master  is 
required  to  render  to  the  collector,  whenever  the  vessel's 
enrollment  or  license  is  renewed,  a  true  account  of  the 
number  of  seamen,  and  the  time  they  have  severally  been 
employed  on  board,  since  the  former  license  was  taken 
out,  and  to  pay  the  same  sum  of  twenty  cents  per  month 
for  each  seaman ;  and  if  a  false  account  is  rendered,  the 
master  subjects  himself  to  a  penalty  of  one  hundred  dol- 

>  Per  Davis  J.,  District  Court  U.  S.  Mass.  District,  in  Lamson  v.  Westcott, 
(same  case  as  The  Bri^  George.)     Appendix  to  1  Sumner's  R.  p.  591. 
»  Act  U.  S.  16  July,  179S,  chap.  94,  sec.  1. 


SICKNESS  —  HOSPITAL  MOiNEY.  117 

lars.'  The  moneys  thus  collected  constitute  a  fund,  un- 
der the  management  of  the  President  of  the  United 
States  and  directors  appointed  by  him,  for  the  support  of 
marine  hospitals  in  the  several  districts,  to  which  all  mer- 
chant seamen,  becoming  sick  or  disabled,  have  a  right  to 
resort  for  temporary  relief  and  maintenance.^  But  these 
provisions  do  not  supersede  the  right  of  the  seamen  un- 
der the  general  maritime  law  to  be  cured  at  the  expense 
of  the  ship  to  which  they  belong  of  all  sickness  or  injury 
occurring  to  them  while  in  the  service  of  that  ship.  They 
are  intended  as  auxiliary  to  the  maritime  law,  and  to 
reach  cases  where  that  law  gives  no  relief.^ 

'  Act  U.  S.  sec.  2.  By  a  subsequent  act,  a  similar  provision  is  extended 
to  the  persons  employed  on  boats,  rafts,  or  flats,  going  down  the  Mississippi 
river  to  New  Orleans.     Act  U.  S.  3  May,  1802,  ch.  51,  sec.  3. 

*  The  several  acts  on  this  subject  will  be  found  in  the  Appendix. 

3  Reed  el  al.  v.  Canfield,  1  Sumner's  R.  200.  It  seems  that  these  acts 
have  been  practically  construed  not  to  impose  upon  ships  or  vessels  in  the 
whale  and  other  fisheries  the  payment  of  hospital  money;  and  that,  there- 
fore, the  seamen  employed  in  those  fisheries  are  presumed  not  to  be  enti- 
tled to  the  benefit  of  the  hospitals.  In  the  case  just  cited,  Story  J.  inti- 
mated that  all  seamen,  (and  whalemen  and  fishermen  are  seamen  in  the 
sense  of  the  maritime  law,)  migiit  be  witlyn  the  scope  of  the  acts  ;  and  if  so 
no  executive  instructions  could  lawfully  narrow  them.  But  the  point  was 
not  decided. 


CHAPTER   IV. 

OF    OFFENCES    AGAINST     THE     DISCIPLINE     AND     ECONOMY 
OF    THE    SHIP    AND    THE    PUBLIC    LAW. 

It  has  already  been  seen,  in  a  former  chapter,  that  the 
relation  between  the  master  and  crew  of  a  merchant  ves- 
sel places  in  the  hands  of  the  former  the  reins  of  a  strict 
discipline,  required  by  the  nature  of  the  service ;'  and 
it  is  also  to  be  observed,  that  the  relation  of  both 
master  and  crew  to  the  owners  of  the  ship  and  of  the 
cargo,  being  of  a  highly  fiduciary  nature,  imposes  upon 
them  very  important  duties  and  responsibilities,  peculiar 
to  this  relation,  the  breach  of  which  is  attended  with  pe- 
culiar and  a])propriate  penalties,  established  partly  by 
statutory  provisions  and  partly  by  the  general  maritime 
law.  Some  of  the  acts  which  the  master  or  mariners 
may  commit,  in  violation  of  their  duty  to  the  owners  of 
the  ship  or  of  the  cargo,  are  included  in  the  law  of  this 
country  and  of  England  under  the  generic  term  barratry ; 
which  signifies  any  fraudulent  act  of  the  master  or  mar- 
iners, committed  to  the  prejudice  of  the  owners  of  the 
ship  or  cargo.-  The  term  barratry,  however,  belongs 
strictly  to  the  law  of  marine  insurance,  and  not  strictly 

'  Ante,  part  2,  ch.  1. 

*  Abbott  on  Shipping,  p.  138.  Earle  v.  Rotvcroft,  8  East's  R.  126.  See 
also  the  elaborate  note  to  Abbot,  by  Story  J.  p.  138,  note  3,  edit.  1829,  and 
the  American  authorities  there  cited. 


OFFENCES.  119 

to  the  relation  of  the  master  and  mariners  simply  to  the 
owners,  when  considered  apart  from  the  rights  and  inter- 
ests of  underwriters.  But  from  the  great  importance  of 
protecting  these  latter  interests,  as  well  as  the  general 
interest  of  owners,  and  to  preserve,  if  I  may  so  call  it, 
the  public  peace  of  the  ocean,  many  of  the  offences 
which  fall  under  the  head  of  barratry  have  been  made 
punishable  by  special  enactments.  There  are  yet  other 
offences,  of  serious  prejudice  to  the  interests  of  the 
voyage,  which,  as  between  the  owner  and  the  insurer, 
would  not  come  under  the  head  of  barratry;  but  for 
which  suitable  penalties  are  found  in  the  statutory  or 
the  general  law,  having  in  view  the  immediate  interests 
of  the  owner  and  of  the  voyage.  Dismissing,  therefore, 
the  consideration  of  barratry,  as  a  subject  belonging  to 
the  law  of  insurance,  I  now  proceed  to  enumerate,  with 
their  proper  definitions,  those  offences  which  violate  the 
discipline  and  economy  of  the  ship,  and  the  penalties 
attached  to  each,  by  statute  or  by  the  general  law. 

But  before  proceeding  to  this  enumeration,  it  is  to  be 
remarked,  that  penalties  and  punishments  are  applied 
to  maritime  offences,  in  three  modes :  first,  by  the  public 
tribunals  acting  judicially  upon  the  offender  ;  secondly, 
by  the  general  authority  of  the  master  to  punish  or  dis- 
miss the  delincpient ;  and  tldrdhj,  by  a  principle,  peculiar 
to  the  maritime  law  in  respect  to  the  range  of  its  applica- 
tion, upon  which  a  total  or  partial  forfeiture  of  wages 
may  be  enforced  by  the  master  or  owner,  according  to  the 
nature  of  the  misconduct. 

1.  The  offence  of  wiffully  and  corruptly  casting  away, 
burning,  or  oiIk  rwise  destroying  the  ship  or  vessel,  to 
which  the  j)artv  belongs. 


120  DESTROYING  AND  RUNNING  AWAY  WITH   SHIP. 

The  act  of  Congress  of  llic  26th  of  March,  1804, 
])rovi(1os  "  that  any  ]KM-son,  not  being  an  owner,  who 
shall,  on  the  lii^h  seas,  A\ilf'ully  and  corruptly  cast  away, 
Innii  or  othcru  isc  (h^stroy  any  ship  or  vessel,  nnto  which 
he  hcloiiiiith,  being  the  property  of  any  citizen  or  citi- 
zens of  the  Ihiitcd  States,  or  jnocure  the  same  to  be 
done,  shall  sulfer  death."  ^  To  "  destroy  a  vessel,"  within 
the  meaning  of  this  statute,  has  been  construed  to  be  to 
unfit  her  for  service,  beyond  the  hope  of  recovery  by  or- 
dinary means.  This,  as  to  the  extent  of  the  injury,  is 
synoymous  with  "  cast  away ;"  it  is  the  general  term. 
Casting  away  is,  like  burning,  a  species  of  destruction. 
Both  of  them  mean  such  an  act  as  causes  the  vessel 
to  perish,  to  be  lost,  to  be  irrecoverable  by  ordinary 
means.^ 

2.  The  offences  of  piratically  and  feloniously  running 
away  with  the  ship,  or  vessel,  or  cargo ;  of  voluntarily 
yielding  up  the  ship  or  vessel  to  a  pirate ;  of  hindering 
and  preventing  the  master  from  fighting  in  defence  of 
the  ship  or  cargo,  and  of  making  a  revolt,  upon  the  high 
seas,  or  in  any  river,  haven,  basin,  or  bay,  out  of  the  ju- 
risdiction of  any  particular  State  of  the  United  States. 
These  are  all  capital  offences,  by  the  act  of  Congress 
30th  of  A])ril,  1790,  ch.  36,  which  declares  "that  if 
any  person  shall  commit  upon  the  high  seas,  or  any  river, 
haven,  basin,  or  bay,  out  of  the  jurisdiction  of  any  par- 
ticular State,^  murder,  or  robbery,  or  any  other  offence, 
which,  if  committed  within  the  body  of  a  county,  would, 

»  Act  U.  S.  26th  March,  1804,    sec.  1. 
*   Untied  States  v.  Johns,  1  Washington's  R.  363. 

^  These  words  have  been  construed  to  mean  out  of  any  particular  State 
of  the  United  States.     The  United  Stales  v.  Furlong,  5  Wheaton's  R.  184. 


REVOLT,   PIRATICAL  RUMSIJS'G   AWAY,   ETC.  121 

by  the  laws  of  the  United  States,  be  punishable  ^^■ith 
death ;  or  if  any  captain,  or  mariner  of  any  ship,  or  other 
vessel,  shall  piratically  and  feloniously  run  away  with 
such  ship  or  vessel,  or  any  goods  or  merchandise  to  the 
value  of  fiftv  dollars,  or  yield  up  such  ship  or  vessel  vol- 
untarily to  any  pirate  ;  or  if  any  seaman  shall  lay  violent 
hands  upon  his  commander,  thereby  to  hinder  and  pre- 
vent his  fighting  in  defence  of  his  ship,  or  goods  com- 
mitted to  his  trust,  or  shall  make  a  revolt  in  the  ship ; 
every  such  offender  shall  be  deemed,  taken  and  adjudged 
to  be,  a  pirate  and  felon,  and  being  thereof  convicted, 
shall  suffer  death."  ^ 

The  offences  named  in  this  section,  which  are  applica- 
ble to  the  relation  of  the  crew  to  their  own  vessel  and 
owners,  are  those  enumerated  at  the  head  of  the  forego- 
ing paragraph.  To  constitute  piracy  within  the  statute, 
by  running  away  with  the  vessel,  or  any  goods  or  mer- 
chandise to  the  value  of  fifty  dollars,  personal  force  and 
violence  are  not  necessary.  It  is  sufficient  if  the  running 
away  be  with  an  intent  to  convert  the  same  to  the  taker's 
use  against  the  will  of  the  owner,  or  animo  furandi. 
The  statute  has  in  view  the  prevention  of  atrocious  vio- 
lations of  trust,  by  persons  standing  in  particular  relations 
to  tin;  sliip.^  The  next  offence,  that  of  voluntarily  yield- 
ing u])the  vessel  to  a  pirate,  has  not  received  any  Judicial 
inter))retation,  so  far  as  I  am  informed.  No  great  doubts, 
however,  of  its  meaning,  can  attach  to  the  clause,  which 
seems  to  intend  cases  where  the  party  voluntarily  yields 
to  the  attack  or  attemi)t  of  a  j)iratical  force,  without  the 

'  Act  United  Stati"=,  30tti  April,  1790,  cli.  36,  sec.  8.    But  the  pimisliuicnt 
for  makini?  n  revolt  is  now  changi-d.     Sec  infra,  p.  128. 
•  The  Untied  Slata  v.  Tulhj,  1  Gallison'a  R.217. 

16 


122  REVOLT,   ETC. 

resistance  which  liis  rehition  to  the   ship  imposes   ii})oii 
liiin  \\\c  (hit\  ol'  makiiiii,.     Tlie  next  ofiencc,  that  of  lay- 
iiii;  \ioKiU  h;iiuls  upon  the  master  to  hinder  and  prevent 
his  li<^hting  in  defence  of  the  ship,  or  cargo,  contemplates 
llic  use  of  j)ersonal  force  and  violence  against  the  master, 
for  the  pmpose   described.     ^Vhcther  tiie  offence  would 
be  equally  committed,  by  a  technical  assault,  by  menacing 
to  shoot  with  a  gun,  or  wound   with  a  cutlass,  without 
an   actual   imposition  of  hands,   might  unfortunately  be 
questionable,  upon  the  words  used  in  the  statute.     That 
such  an  assault  ought  to  come  within  the  same  mischief 
of  the   act,   as  the  laijing  of  violent  hands,  and  would 
equally  well  accomplish  the  same  purpose,  is  most  obvious ;' 
and  yet  the  unfortunate  expression  of  the  statute  seems 
to  be  strictly  descriptive  and  exclusive.     The  last  offence, 
of  making  a  revolt  in  the  ship,  has  also  not  received  any 
direct  judicial  construction,  within  my  knowledge.     In  a 
case  occurring  in  the  Circuit  Court  of  Pennsylvania,  in 
1815,  Washington  J.  said  that  he  had  always  considered 
that  to  make  a  revolt  was  to  throw  off  all  obedience  to 
the  master;   to  take  possession  by  force,  of  the  vessel,  by 
the  crew ;  to  navigate  her  themselves,  or  to  transfer  the 
command  to  some  other   person  on  board  ;  and  that  a 
revolution,  going  to  such  an  extreme,  appeared  to  him  to 
bear  a  strict  analogy  to  treason  against  the  State  ;  amount- 
ing to  a  falling  off  from  the  allegiance  due  from  an  infe- 
rior to  a  superior.     Still,  he  would  not  instruct  a  jury  by 
a  positive  definition  of  a  capital  offence,  not   clearly  de- 
fined in  the  statute,  where  the  prisoner  was  indicted  for 
a  less  offence,  the  definition  of  which  was  clear.^     But 

'  Holding  of  6sts  to  strike  the  captain  is  so  near  an  act  of  mutiny,  that  it 
will  justify  the  captain  in  striking  the  first  blow.    The  Lir)ia,3  Hag.  B..  253. 
*  The  Untied  States  v.  Sharp,  1  Peters's  Circ.  C.  R.  118. 


PIRATICAL  CONFEDERACY,   ETC.  123 

we  may  safely  extract  the  definition  of  making  a  revolt 
from  the  cases  where  the  courts  have  defined  the  endeavor 
to  make  a  revolt,  an  offence  created  by  a  subsequent  sec- 
tion, and  presently  to  be  considered.  In  the  one  case, 
the  offence  is  committed  by  the  actual  doing  and  accom- 
plishment, of  that  which,  in  the  other,  is  attempted  to  be 
committed.  It  is  then,  to  overthrow  the  legitimate  au- 
thority of  the  master,  to  remove  him  from  his  command, 
or  against  his  will  to  take  possession  of  the  vessel,  by  as- 
suming the  government  and  navigation  of  her,  or  by  trans- 
ferring obedience  from  the  lawful  commander  to  some 
other  person.     But  this  offence  is   now  further  defined 

by  another  statute.^ 

3.  The  offences  of  confederating,  attempting,  or  en- 
deavoring, to  compel  any  officer  or  mariner  to  yield  up, 
or  run  away  with  the  vessel,  or  cargo,  or  to  turn  pirate, 
or  to  go  over  to,  or  confederate  with  a  pirate,  knowing 
him  to  be  such  ;  of  furnishing  such  pirate  with  ammuni- 
tion, stores  or  provisions;  of  consulting,  combining,  con- 
federating, or  corresponding  with  any  pirate  or  robber  on 
the  seas,  kno\Aing  him  to  be  guilty  of  any  such  piracy  or 
robbery  ;  of  confining  the  master,  or  endeavoring  to  make 
a  revolt  in  the  ship  ;  — these  are  all  punishable  by  impris- 
onment for  a  term  not  exceeding  three  years,  and  by  a 
fine  not  exceeding  one  thousand  dollars."^ 

'  The  United  States  v.  Kelly,  11  Wheaton's  R.  417.  See  also  the  cases 
cited  infra,  defining  the  endeavor  to  make  a  revolt,  and  the  new  act  of  1838, 
infra,  p.  128. 

»  Act  U.  S.  30th  April  1790,  ch.  36,  sec.  12.  "  If  any  seaman  or  other 
person  shall  commit  manslaughter  upon  tlio  liigh  seas;  or  confederate,  or 
attempt,  or  endeavor,  to  compel  any  commander,  master,  olTiccr,  or  mariner 
to  yield  up,  or  run  away  with  any  ship  or  vessel,  or  with  any  goods,  wares,  or 
merchandise,  or  to  turn  pirate,  or  to  go  over  to,  or  confederate  witii  pirates,  or 
in  any  wise  trade  with  any  pirate,  knowing  him  to  he  such,  or  shall  furnish 


124  CONFINING  TIIF,  MASTFR. 

Tlio  two  last  of  these  olTences,  arc  of  the  most  frequent 
oceurreiice,  and  have  received  ample  interpretation  in  the 
courts. 

The  olTcuce  of  eoiifininii  the  master  is  not  limited  to 
mere  personal  restraint  bv  seizing  him  and  preventing  the 
free  movements  of  his  body,  nor  to  imprisonment  in  any 
specific  place.  It  is  equally  a  confinement  within  the 
Act,  to  prevent  him  from  free  movement  about  the  ship, 
bv  force  or  intimidation,  as  by  limiting  him  to  walking 
on  a  ])articular  part  of  the  deck  by  terror  of  bodily  injury, 
or  bv  pres(Mit  force.  If  he  is  surrounded  and  prevented 
from  moving  where  he  pleases,  according  to  his  rights  or 
duty  as  master,  under  threats  of  force,  or  if  he  is  restrained 
from  going  to  any  part  of  the  ship,  by  an  avowed  deter- 
mination of  the  crew,  or  of  any  part  of  them,  to  resist  him, 
and  to  employ  adequate  force  to  prevent  it,  these  fall 
within  the  meaning  of  confinement.'  So  too,  if  the  mas- 
ter is  restrained  from  performing  the  duties  of  his  station, 
by  such  mutinous  conduct  of  his  crew  as  would  reasona- 
ably  intimidate  a  firm  man,  it  is  a  confinement,  and  if  he 
is  compelled  to  go  armed  about  the  ship,  from  reasonable 

such  pirate  with  any  ammunition,  stores,  or  provisions  of  any  kind  ;  .  .  .  . 
or  if  any  seamen  shall  confine  the  master  of  any  ship  or  other  vessel,  or  en- 
deavor to  make  a  revolt  in  such  ship ;  such  person  or  persons,  &c.  shall  be 
imprisoned  not  exceeding  three  years,  and  fined  not  exceeding  one  thousand 
dollars."  The  term  "seamen,"  in  this  act,  is  not  confined  merely  to  those 
who  have  signed  the  articles,  hut  it  comprehends  also  seamen  of  the  United 
States,  put  on  board  a  vessel  of  the  United  States,  by  a  consul,  to  be  returned 
to  this  country.  United  Stales  v.  Sharp  et  al.  (1  Peters's  Circ.  C.  R.  118.) 
The  mate  is  a  seaman  within  the  kci,{United  States  \.Hemmer,  4  Mason's 
R.  105,)  and  the  cooper,  {United  States  v.  Thompson,  1  Sumner's  R.  168.) 
But  the  punishment  for  some  offences  is  now  extended  to  five  years'  im- 
prisonment and  the  fine  of  §1000.     See  infra,  p.  128. 

'  United  States  v.  Hemmer  et  aZ.,4  Mason's  R.  105.  Same  v.  Smith  et  al, 
3  Washington's  R.  78.     Same  v.  Sharp  et  al,  1  Peters's  Circ.  C  R.  118. 


ENDEAVOR  TO  COMMIT  A  REVOLT.  125 

fear  for  his  own  safety,  although  not  actually  molested,  it 
is  a  confinement.^  So  too,  seizing  the  person  of  the  master, 
though  but  for  a  minute  or  two  f  and  seizing  him  though 
only  temporarily,  and  for  the  purpose  of  inflicting  upon  him 
personal  chastisement,^  are  within  the  meaning  of  the  Act. 
But  the  restraint,  whether  moral  or  physical,  must  be  an 
illegal  restraint.  If  the  master  is  about  to  do  an  illegal 
act,  and  especially  to  do  a  felony,  a  seaman  may  lawfully 
confine  or  restrain  him.  So  a  seaman  may  confine  the 
master  in  justifiable  self  defence.  If  the  master  assault 
him  Avithout  cause,  he  may  restrain  the  master  with  so 
much  force,  and  so  long,  as  is  necessary  for  this  purpose. 
And,  if  he  is  suddenly  seized  by  the  master,  and  without 
any  intention  of  restraining  him  of  his  liberty,  from  the 
mere  impulse  of  nature,  he  takes  hold  of  the  master,  to 
prevent  any  injury,  for  an  instant  only,  and  as  soon  as  he 
may,  he  withdraws  the  restraint,  so  tluit  the  act  may  be 
fairly  deemed  involuntary,  it  might  not  perhaps,  be  deem- 
ed an  offence  within  the  Act,  even  though  the  seizing  by 
the  master  was  strictly  justifiable :  for  the  will  must 
cooperate  with  the  deed.  But  if  the  seizing  by  the  mas- 
ter be  justifiable,  and  he  does  not  exceed  the  chastisement 
whkh  he  is  by  law  entitled  to  inflict,  then  the  seaman 
cannot  restrain  liim,  but  is  bound  to  submit;  and  if  he 
does  hold  the  master  in  jxTsonal  confinement  or  restraint, 
it  is  an  oflfMice  within  tiic  staiute.'' 

The  ofl(!nce  of  endeavoring  to  commit  a  revolt  had  not 
been  defined  in  the  Act,  and  a  Judicial  construction  alone 

'  Uniled  States  v.  Tihulcn,  1  Pcters's  Circ.  C.  R.  213. 

'  United  Staid  v.  Bladen,  ut  supra. 

'  Uniled  States  v.  Savage,  5  Mason's  R.  4G0. 

*  United  Stalc.t  v.  Thompson,  1  Sumner's  R.  168. 


126  ENDEAVOR  TO  COMMIT  A  REVOLT. 

could  dctcrniino  it.  Tlic  Supirmc  Court  of  the  United 
States,  ill  nvJG,  held  that  it  was  competent  to  the  Court 
to  give  a  definition  ol  it,  and  tliat  it  consists  in  the  en- 
deavor of  the  crew  of  a  vessel,  or  any  one  or  more  of 
them,  to  overthrow  the  legitimate  authority  of  the  com- 
mander, or  a2;<»inst  his  will  to  take  possession  of  the  ves- 
sel hy  assuming  the  government  and  navigation  of  her, 
or  by  transferring  their  obedience  from  the  lawful  com- 
mander to  some  other  person.^  It  had  been  supposed 
that  the  terms  of  this  definition  did  not  include  cases 
where  the  seamen  merely  conspired  together  not  to  do 
duty  on  board,  until  the  master  had  complied  with  their 
wishes  in  respect  to  some  particular  object,  without  aim- 
ing at  an  actual  removal  of  him  by  physical  force,  from 
the  command  of  the  ship.  But  in  a  subsequent  case  in 
the  Circuit  Court  of  the  United  States  for  Massachusetts 
District,  Story  J.  explained  that  such  was  not  the  under- 
standine:  of  the  Court  when  that  definition  was  laid 
down.  "  The  language,"  said  he,  "  does  not  import 
that  the  removal  from  command  must  be  by  physical 
force.  The  Court  look  to  the  fact,  whether  there  is  an 
overthrow  of  the  master's  authority,  or  a  removal  of  him 
from  his  command,  intended  ;  and  not  to  the  mode  by 
which  it  is  accomplished.  The  overthrow  of  authority 
may  be  just  as  complete,  the  removal  from  command 
may  be  just  as  effectual,  by  a  universal  disobedience  to 
all  orders,  producing  an  actual  suspension  of  the  master's 
authority  or  command,  as  by  actual  force,  or  personal 
imprisonment,  or  driving  the  master  on  shore."  ^ 

»  United  States  v.  Kelly,  11  Wheaton's  R.  417. 

*  United  States  v.  Haines  et  al.,  5  Mason's  R.  272,  et  seq.     See  infra,  p. 
128,  note. 


ENDEAVOR  TO  COMMIT  A  REVOLT.  127 

The  same  learned  Judge  has  repeatedly  defined  this 
offence,  to  be  in  effect  an  endeavor  to  make  a  mutiny 
among  the  crew  of  the  ship,  or  to  stir  up  a  general  diso- 
bedience or  resistance  to  the  authority  of  the  officers. 
A  mere  act  of  disobedience  to  a  lawful  command  of  tlie 
officers  is  not  of  itself  an  endeavor  to  make  a  revolt ;  but 
to  amount  to  the  offence,  it  must  be  combined  with  an 
attempt  to  excite  others  of  the  crew,  either  to  a  general 
resistance  or  disobedience  of  orders,  or  a  general  neglect 
and  refusal  of  duty,  or  to  resist  a  single  lawful  order  of 
the  master,  or  to  com])el  him  to  yield  up  his  authority  in 
a  single  case.^  Actual  disobedience  to  some  order  given 
is  not  necessary  to  constitute  the  offence.  If  the  crew 
have  combined  together  to  disobey  orders  and  to  do  no 
duty,  the  offence  is  complete  by  such  combination,  al- 
though no  orders  have  been  subsequently  given."  But 
it  is  not  necessary  that  there  should  be  any  previous 
deliberate  combination  for  mutual  aid  or  encouragement, 
or  any  preconcerted  plan  of  operations,  to  effect  the  ille- 
gal object.  However  sudden  may  be  the  occurrence,  or 
unexpected  the  occasion,  of  such  disobedience,  or  resist- 
ance, those  who  take  a  part  in  it,  whether  by  words  or 
by  deeds,  by  direct  acts  of  aid  or  assistance,  or  by  en- 
couragement, or  incitement,  arc  in  contemplation  of  law 
guilty  of  the  offence.  Their  conduct,  under  such  cir- 
cumstances, amounts  to  an  endeavor  to  commit  a  revolt 


*  United  Slates  v.  Smith,  1  Mason's  R.  147.  Same  v.  Ilcmmcr,  4  Ma- 
son's R.  105.  Same  v.  Gardner,  5  Mason's  R.  402.  Same  v.  Sava:re, 
Ibid.  460.  Same  v.  Thompson,  1  Sumner's  R.  1G8.  Same  v.  Cassedy, 
2  Sumner's  R.  6S2. 

*  United  States  v.  Barker,  5  Mason's  R.  404. 


1 28     RKVOl.T  —  ATTr.MrT  AT  KKVOLT  —  COM'ININC  'I'l  1):  MASTER. 

by  ovtMtlnowinii,  /iro  hac  vice,  tlio  lawful  authority  of  the 
coniiiiaiidinii  offiier  of  the  shij).^ 

The  offences  of  mutiny  and  revolt,  of  an  attemj)t  at 
mutiny  and  revolt,  and  confining  the  master,  have  been 
further  defined  and  punished  by  a  subsequent  statute.*^ 


'    United  States  V.  Morrison  ct  al.,  I  Sumner's  R.  448. 

*  Act  U.  S.  3  March,  1835,  ch.  313,  sec.  1.  That  if  any  one  or  more  of 
the  crew  of  any  American  ship  or  vessel  on  the  high  seas,  or  on  any  other 
waters  within  the  admiralty  and  maritime  jurisdiction  of  the  United  States, 
shall  unlawfully,  wilfully,  and  with  force,  or  by  fraud,  threats  or  other 
intimidations,  usurp  the  command  of  such  ship  or  vessel  from  the  master 
or  other  lawful  commanding  officer  thereof,  or  deprive  him  of  his  authority 
and  command  on  board  thereof,  or  resist  or  prevent  him  in  the  free  and 
lawful  exercise  thereof,  or  transfer  such  authority  and  command  to  any 
other  person  not  lawfully  entitled  thereto,  every  such  person  so  offending, 
his  aiders  or  abettors,  shall  be  deemed  guilty  of  a  revolt  or  mutiny  and 
felony;  and  shall  on  conviction  thereof  be  punished  by  a  fine  not  exceeding 
two  thousand  dollars;  and  by  imprisonment  and  confinement  to  hard 
labor  not  exceeding  ten  years,  according  to  the  nature  and  aggravation  of 
the  offence.  And  the  offence  of  making  a  revolt  in  the  ship,  which  now 
is,  under  and  in  virtue  of  the  eighth  section  of  the  Act  of  Congress,  passed 
the  thirtieth  day  of  April,  in  the  year  of  our  Lord  one  thousand  seven  hun- 
dred and  ninety,  punishable  as  a  capital  offence,  shall,  from  and  after  the 
passage  of  this  Act,  be  no  longer  punishable  as  a  capital  offence,  but  shall 
be  punished  in  the  manner  prescribed  in  the  present  Act,  and  not  other- 
wise. 

Sec.  2,  That  if  any  one  or  more  of  the  crew  of  any  American  ship  or 
vessel  on  the  high  seas,  or  any  other  waters,  within  the  admiralty  and 
maritime  jurisdiction  of  the  United  States,  shall  eadeavor  to  make  a  revolt 
or  mutiny  on  board  such  ship  or  vessel,  or  shall  combine,  conspire  or  con- 
federate with  any  other  person  or  persons  on  board  to  make  such  revolt  or 
mutiny,  or  shall  solicit,  incite  or  stir  up  any  other  or  others  of  the  crew  to 
disobey  or  resist  the  lawful  orders  of  the  master,  or  other  officer  of  such 
ship  or  vessel,  or  to  refuse  or  neglect  their  proper  duty  on  board  thereof,  or 
shall  unlawfully  confine  the  master,  or  other  commanding  officer  thereof, 
every  such  person  so  offending  shall,  on  conviction  thereof,  be  punished  by 
fine  not  exceeding  one  thousand  dollars,  or  by  imprisonment  not  exceeding 
five  years,  or  by  both,  according  to  the  nature  and  aggravation  of  the 
offence. 


DESERTION.  129 

To  sustain  an  indictment  for  an  endeavor  to  commit  a 
revolt  under  the  second  section  of  this  new  Act,  a  con- 
federacy or  cou'bination  must  be  shewn  between  two 
or  more  of  the  seamen,  to  refuse  to  do  further  duty  on 
board  the  ship,  or  to  resist  the  lawful  commands  of  the 
officers. 

4.  Desertion  is  an  offence  of  the  gravest  character, 
and  stands  next  in  the  scale  to  those  before  enumerated. 
When  a  mariner  has  hired  his  services  to  a  vessel  for  a 
definite  voyage,  he  cannot  abandon  the  vessel  until  that 
voyage  is  finished.  The  rescission  of  his  contract,  at  his 
own  pleasure,  has  always  been  denied  to  him,  in  all 
countries,  for  obvious  reasons  of  policy.  It  has  been 
guarded  against  by  various  penalties,  in  the  maritime 
law  of  different  States,  some  of  the  elder  of  which  were 
of  great  severity,  and  all  of  them  concur  in  the  principle 
that  desertion  incurs  a  forfeiture  of  the  wages  antece- 
dently earned.^ 

Desertion,  in  the  sense  of  the  maritime  law,  is  a  quit- 
ting of  the  ship  and  her  service,  not  only  without  leave, 
and  against  the  duty  of  the  party,  but  with  an  intent  not 
again  to  return  to  the  ship's  duty.  There  is  thus  a  dis- 
tinction taken  lu^tween  a  mere  absence  without  leave, 
and   a  final  (putting  of   the   ship  animo  derelinquendi. 

'  Droit  Mar.  (h  Wiihuy,  nrt.  62,  Pardcssns,  tome  i,  p.  500,  Consnlato 
del  Marn,c\\.  112,  [157],  11.1,  [158],  P;ird.  tome  ii,  pp.  141,  142.  VOrdon. 
de  Charles  V.  (1551),  art.  6,  7,  9,  Pard.  tome  iv,  pp.  4(),  47.  Droit  Mar.  de 
la  LiguK  Anseattqne,  {Rtrks  de  1614),  tit.  4,  art.  25,  Pard.  tome  ii,  p.  542. 
VOrd.  de  la  Murinr^  liv.  2,  tit.  7,  nrt.  ?,.  Valin,  Coiiini.  tomr  i,  p.  534. 
By  the  Laws  of  Wisbuy,  do^crters  were  in  some  cases  piinislifd  with 
death  ;  by  the  Laws  of  the  Ilanse  Towns,  they  were  punislicd  with  brand- 
ing on  the  cheek,  and  by  other  penalties.    Ul  sujtra. 

17 


1 30  DESERTION. 

Tlie  former  absence  is  punishable  with  greater  or  less 
forreiture  of  wages,  or  corporal  chastisement ;  the  latter 
is  the  offence  whicii  incurs  the  forfeiture  of  all  wages.' 
But  in  order  to  have  this  effect,  the  desertion  must  be 
duriiio  the  voyage;  and  although  it  is  the  duty  of  officers 
and  crew  to  remain  by  the  ship  until  the  cargo  is  un- 
livered,  yet  upon  this  question  of  desertion  the  voyage  is 
ended  when  the  ship  has  arrived  at  her  last  port  of  desti- 
nation, and  is  moored  in  good  safety  in  the  proper  and 
accustomed  place.  Quitting  the  ship  before  such  ar- 
rival and  mooring  constitutes  a  desertion  ;  quitting  her 
after  such  arrival  and  mooring,  before  the  unlivery  of  the 
cargo,  is  a  mere  absence,  punishable  indeed  with  the 
loss  of  some  portion  of  the  wages,  in  the  nature  of  dam- 
ages to  the  owner,  but  not  incurring  a  forfeiture  of  the 
whole,  in  modum  pcence.^  Such  is  the  rule,  in  the  ab- 
sence of  all  contract  upon  the  point  in  the  articles. 
There  have  been  cases  where  the  entire  wages  have 
been  held  forfeited  for  refusing  to  stay  and  unlade  the 
cargo ;  but  they  proceeded  upon  clauses  in  the  arti- 
cles making  such  refusal  a  desertion,  by  the  contract, 
which  would  have  been  an  absence  by  the  general 
law.^ 

The  nature  of  this  offence  is  further  illustrated  by 
cases  in  which  it  has  been  decided  what  acts  and  doings 


'  Cloutman  v.  Tunison,  1  Sumner's  R.  373.  The  Rovena,  Ware's  R. 
309.     The  Bulmcr,  1  Haggard's  Adm.  R.  163. 

"  Cloutman  v.  Tunison,  1  Sumner's  R.  373.  The  Pearl,  5  Robinson's 
Adm.  R.  224.  The  Baltic  Merchant,  Edwards's  Adm.  R.  86.  Knagg  v. 
Goldsmith,  Gilpin's  R.  207. 

^  Webb  V.  Duckmgfield,  13  Johns.  R.  390.  Dixon  v.  The  Cyrus,  Peters's 
Adm.  R.  407. 


DESERTION  —  EFFECT  OF  CONDONATION.  131 

amount  to  a  desertion,  and  what  do  not.  It  is  desertion 
wantonly  to  neglect  or  refuse  to  rejoin  the  ship,  after  a 
temporary  separation  by  capture,  when  the  vessel  is  re- 
leased ;  ^  or  after  an  absence  with  leave,  when  ordered 
to  return.-  So  too,  although  by  statute  entering  on  board 
a  king's  ship  is  not  to  be  deemed  a  forfeiture  of  wages 
earned  in  a  merchant  vessel,  yet  where  a  mariner  quitted 
his  vessel  in  defiance  of  the  master,  with  opprobrious 
language,  and  within  twenty-four  hours  entered  on  board 
a  king's  ship,  without  having  made  any  declaration  of  his 
intention  so  to  do,  when  he  quitted  the  vessel,  it  was 
held  to  be  a  desertion.^  But  it  is  not  desertion  to  leave 
the  ship  on  account  of  cruel  and  oppressive  treatment ;  "* 
or  for  want  of  sufficient  provisions,  in  port,  when  they 
can  be  procured  by  the  master  ;  ^  or  when  the  voyage  is 
altered  in  the  articles  without  consent.^ 

There  is  a  principle  applicable  to  this,  as  to  most 
other  maritime  offences,  the  punishment  of  which  resides 
in  the  hands  of  the  master  or  owner,  by  which  the  ior- 
feiture  is  cured.  When  the  mariner  repents,  returns  to 
his  duly  and  is  received  by  the  master  to  the  perform- 
ance of  his  duty,  the  forfeiture  consequent  upon  the  de- 


'  Doardman  v.  The  Elizabeth,  Peters's  Adm.  R.  128. 

»  The  Bulmer,  1  Haggard's  Adm.  R.  103.  The  Jupiter,  2  Ibid.  221.  But 
it  is  not  desertion,  when  a  mariner,  through  excess  of  indulgence,  overstays 
his  lime  of  leave,  and  when  he  has  not  refused  or  neglected  to  comply 
witli  an  order  to  return.      The  EaUufr  Grove,  2  Haggard's  Adm.  R.  15. 

'   The  Amphilrile,  2  Haggard's  Adm.  R.  403. 

'  Rice  V.  T/ie  Polly  ami  Kitty,  Peters's  Adm.  R.  420.  Ward  v.  Ames,  9 
Johns.  R.  138.  Sherwood  v.  Mcintosh,  Ware's  R.  100.  Steele  v.  Tlwchir, 
Ibid.  91. 

*  The  Castilifi,  1  Haggard's  Adm.  R.  59. 

•  The  Eliza,  1  Haggard's  Adm.  R.  1S2. 


132  DF.SERTION  RY   STATUTE. 

stMtioii  is  \\aivo(l.'  ]\Iol•l!o^■e^,  it  appears  tliat  the  mari- 
nvv  is  (Mititli'tl  to  bo  leceivod  on  board  again,  if  he  ten- 
(Kms  liis  amends  at  a  proj)er  time  and  manner,  and  before 
another  person  has  been  employed  in  his  stead,  unless 
liis  j)ri(ir  tondnet  lias  been  so  flagrantly  wrong  as  to  jns- 
tif'v  his  discharge. - 

In  addition  to  these  principles  of  the  maritime  law, 
there  arc  some  statute  jirovisions  respecting  desertion, 
which  are  now  to  be  noticed.  Desertion  is  noticed  in 
the  Act  for  the  government  and  regulation  of  seamen, 
occurring  at  two  periods  after  the  signing  of  the  contract. 
The  first  is  a  desertion  after  having  executed  the  contract, 
by  a  neglect  of  the  mariner  to  render  himself  on  board, 
according  to  his  agreement,  or  by  quitting  the  vessel,  after 
having  rendered  himself  on  board,  so  that  the  ship  or  ves- 
sel proceeds  to  sea  without  him.  This  is  punished  by  a 
forfeiture  of  a  sum  equal  to  what  has  been  })aid  to  the 
mariner  bv  advance,  over  and  l)esides  the  sum  so  ad- 
vanced.^    The  mariner  may  also  be  apprehended  on  a 


'  Whiton  V.  The  Commerce,  Peters's  Adm.  R.  160.  But  all  demands 
and  contributions  for  losses,  occasioned  by  the  absence,  are  not  extinguish- 
ed.    I/jul. 

*  Whiton  V.  The  Comme?-ce,  Peters's  Adm.  R.  160.  Clonlmanv.  Tuni- 
son,  1  Sumner's  R.  373.  3  Kent's  Comm.  198,  ed.  1S40.  Lois  DVlcron,  art. 
14.  Pardessus,  tome  i,  p.  333.  Droit  Mar.  de  Wisbuy,  art.  28.  Ibid, 
p.  481. 

'  Act  U.  S.  20  July,  1790.  "  ■$>  2.  That  at  the  foot  of  every  such  contract, 
there  shall  be  a  memorandum  in  writing,  of  the  day  and  the  hour  on  which 
such  seaman  or  mariner,  who  shall  sliip  and  subscribe,  shall  render  them- 
selves on  board,  to  begin  tlie  voyage  agreed  upon.  \nd  if  any  such  seaman 
or  mariner  shall  neglect  to  render  himself  on  board  the  ship  or  vessel,  for 
-which  he  has  shipped,  at  the  time  mentioned  in  such  memorandum,  and  if 
the  master,  commander,  or  oilier  ofTiccr  of  the  ship  or  vessel,  shall,  on  the 
day  on  which  such  neglect  happened,  make  an  entry  in  llie  log-book  of 


DESERTION  BY  STATUTE.  133 

justice's  warrant,  and  constrained  to  perform  his  engage- 
ment ;  but  in  such  case  the  jDenaky  cannot  be  enforced 
against  him.^ 

such  ship  or  vessel,  of  the  name  of  such  seaman  or  mariner,  and  shall,  in 
like  manner,  note  the  time  that  he  so  neglected  to  render  himself,  (after  the 
time  appointed),  every  such  seaman  or  mariner  shall  forfeit,  for  every  hour 
which  he  shall  so  neglect  to  render  himself,  one  day's  pay,  according  to  the 
rate  of  wages  agreed  upon,  to  be  deducted  out  of  his  wages.  And  if  any 
such  seaman  or  mariner  shall  whvlhj  neglect  to  render  himself  on  board  of 
such  ship  or  vessel,  or  having  rendered  himself  on  board,  shall  aftcrivards  de- 
sert and  escape,  so  thai  the  ship  or  vessel  proceed  to  sea  without  him,  every  such 
seaman  or  mariner  shall  forfeit  and  pay  to  the  master,  owner,  or  consig7iee,  of 
the  said  ship  or  vessel,  a  sum  equal  to  that  ichifh  shall  have  been  paid  to  him  by 
advance  at  the  time  of  signing  the  contract,  over  and  besides  the  sum  so  advanced, 
both  which  sums  shall  be  recoverable  in  any  court,  or  before  any  justice 
or  justices  of  any  stite,  city,  town  or  county,  within  the  United  States, 
which,  by  the  laws  thereof,  have  cognizance  of  debts  of  equal  value,  against 
such  seaman  or  mariner,  or  his  surety  or  sureties,  in  case  he  siiall  have 
given  surety  to  proceed  the  voyage." 

For  this  construction  of  the  statute,  making  the  second  section  apply  to 
absences  before  the  voyage  has  commenced,  and  \he  fifth  section  to  absences 
after  the  voyage  has  coirmienced,  see  Cotel  v.  Ihlliard,  4  Mass.  R.  6b4. 
Abbot  on  Shipping,  Story's  Notes,  p.  468,  edit.  1829. 

*  Act  U.  S.  20  July,  1790.  "  That  if  any  seaman,  or  mariner,  who  shall 
have  signed  a  contract  to  perform  a  voyage,  shall,  at  any  port  or  place,  de- 
sert, or  shall  absent  himself  from  such  ship  or  vessel,  without  leave  of  the 
master,  or  officer  commanding  in  the  absence  of  the  master,  it  shall  be  law- 
ful for  any  justice  of  tiie  peace  within  the  United  States,  {upon  the  complaint 
of  the  master)  \o  issue  his  warrant  to  apprehend  such  deserter,  and  bring 
him  before  such  justice  ;  and  if  it  shall  then  appear,  by  due  proof,  that  he 
has  signed  a  c.ntract  within  the  intent  and  moaning  of  this  act,  and  that 
the  voyage  agreed  for  is  not  finished,  altered,  or  the  contract  otherwise  dis- 
solved, and  that  such  seaman  or  mariner  has  deserted  the  ship  or  vessel,  or 
absented  himself  without  leave,  the  said  justice  shall  commit  him  to  the 
house  of  correction,  or  common  gaol  of  the  city,  town,  or  place,  tiiere  to  re- 
main until  the  said  ship  or  vessel  shall  lie  ready  to  proceed  on  her  voyage, 
or  till  the  master  shall  require  his  discharge,  and  then  to  be  delivered  to  the 
said  master,  he  paying  all  the  cost  of  such  commitment,  and  deducting  the 
same  out  of  the  wages  due  to  such  seaman  or  mariner." 

As  the  .<>lalutc  founds  the  proceeding  "  upou  the  complaint  of  the  master," 


\3l  DESEHTIOJM   BY  STATUTE. 

The  second  period  of  desertion  by  the  statute,  is  after 
the  voyai^e  has  commenced,  and  after  the  vessel  has  left  her 
home  port ;  and  tiiis  is  provided  against  by  the  fifik  section 
of  the  statute,  which  makes  an  absence  of  more  than  forty- 
eight  hours,  il'  })ro})erly  entered  in  the  log-book,  ipso  facto 
a  desertion,  working  an  entire  forfeiture  of  wages,  and  all 
the  mariner's  goods  and  chattels,  as  ^^  ell  as  a  liability  to 
pay  all  damages  sustained  by  the  owner  in  hiring  another 
seaman.^     Thus  the  act  creates  a  statute  desertion,  and 

quen/  wliether  a  warrant  caa  be  issued  on  the  oath  of  the  owner,  accom- 
panied merely  by  a  letter  from  the  master,  requesting  him  to  have  the  sea- 
men apprehended  as  deserters.  Sims  v.  Sundiy  Mariners,  2  Peters's  Adm. 
R.  393. 

'  "  ^  5.  That  if  any  seaman  or  mariner,  who  shall  have  subscribed  such 
contract  as  is  hereinbefore  described,  shall  absent  himself  from  on  board  the 
ship  or  vessel,  in  which  he  shall  so  have  shipped,  without  leave  of  the  mas- 
ter or  officer  commanding  on  board  ;  and  the  mate,  or  other  officer  having 
charge  of  the  log-book,  shall  make  an  entry  therein  of  the  name  of  such 
seaman  or  mariner,  on  the  day  on  which  he  shall  so  absent  himself,  and  if 
such  seaman  or  mariner  shall  return  to  his  duty  within  forty-eight  hours, 
such  seaman  or  mariner  shall  forfeit  three  days'  pay  for  every  day  which  he 
shall  so  absent  himself,  to  be  deducted  out  of  his  wages :  but  if  any  seaman 
or  mariner  shall  absent  himself  for  more  than  forty-eight  hours  at  one  time,  he 
shall  forfeit  all  the  wages  due  to  him,  and  all  his  goods  and  chattels  which  were 
on  board  the  said  ship  or  vessel,  or  in  any  store  ivhere  they  may  have  been  lodged 
at  the  time  of  his  desertion,  to  the  use  of  the  owners  of  the  ship  or  vessel,  and 
moreover  shall  be  liable  to  pay  to  him  or  them,  all  damages  which  he  or 
they  may  sustain  by  being  obliged  to  hire  other  seamen  or  mariners  in  his  or 
their  place  ;  and  such  damages  shall  be  recovered  with  costs,  in  any  court, 
or  before  any  justice  or  justices,  having  jurisdiction  of  the  recovery  of  debts, 
to  the  value  of  ten  dollars  or  upwards." 

Qucre  —  what  would  be  the  effect  if  a  seaman,  absent  without  leave, 
should  have  intended  to  return  within  forty-eight  hours,  and  be  prevented 
by  inevitable  casualty  ?  By  the  terms  of  the  act,  it  would  be  a  desertion,  for- 
feiting the  whole  wages.  Would  the  case  be  within  the  intention  of  the  act  ? 
Pothier  puts  a  similar  case,  in  reference  to  the  seaman's  obligation  to  render 
himself  on  board,  according  to  his  contract,  and  the  provisions  of  the  French 
ordinance  concerning  absence,  (liv.  2  tit.  7,  art.  3,)  and  thus  discusses  it: 


<-> ' 


DESERTIO-N    BY   STATUTE.  \^q 

makes  that  conclusive  endence  of  the  fact,  which  Avould, 
upon  the  common  principles  of  the  maritime  law,  be  merely 
presumptive  evidence  of  it.  It  does  not  supersede  the  gen- 
eral doctrine  of  the  maritime  law,  or  repeal  it ;  but  merely 
in  a  given  case  applies  a  particular  rule,  in  pcenam, 
leaving  the  maritime  law  in  all  other  cases  in  full  effi- 
ciency.^ If  the  master  prefers,  the  deserting  mariner  may 
be  apprehended  on  a  justice's  warrant,  under  the  seventh 
section  of  the  act ;  but  then  he  does  not  also  forfeit  his 
wages  under  t\\L\fifth  s(>ction;-  and  if  the  vessel  becomes 
unfit  to  proceed  to  sea,  or  is  abandoned  to  underwriters, 
while  the  mariner  is  thus  imprisoned,  the  local  authorities 
must  discharge  him.^ 

The  statute   requiring   the   entry   in   the   log-book  is 

"It  is  evident  that  the  seaman  is  not  subject  to  any  penalties,  when  by  an 
accident  of  vis  major,  such  as  sickness,  he  is  prevented  from  fulfilling  his 
obligation,  and  from  going  in  the  ship  for  which  he  has  been  hired.  The 
master  can,  in  this  case,  claim  nothing  more  than  to  be  discharged  from 
the  iiiring  of  services  which  the  mariner  has  not  been  able  to  render,  and 
the  restitution  of  what  has  been  advanced  to  him.  Whatif  the  seaman  has 
not  been  able  to  embark,  because  he  has  been  arrested  for  a  crime  of  which 
he  is  accused,  or  he  has  been  arrested  during  the  voyage  ?  In  this  case,  if 
in  the  result  of  the  process,  he  is  not  convicted,  the  imprisonment  would  in 
like  manner  be  deemed  an  accident  of  vis  major,  and  there  would  be  no 
room  for  damages.  But  if  he  had  been  convicted,  he  would  not,  in  strict- 
ness, be  liable  to  the  penalties  inflicted  by  the  third  article,  his  desertion  not 
having  been  voluntary  ;  but  as  it  would  have  been  by  his  act  and  by  his 
fault,  that  he  was  made  prisoner,  and  did  not  fulfil  his  obligation,  he  would 
be  liable  to  damages  —  as,  for  example,  if  the  master  had  given  higher  wages 
to  one  hired  in  his  place."  Pothicr,  Louages  Mar.  n.  174.  Edit.  Dupin, 
tome  iv,  p.  405.     See  also  Pothicr,  TraiU  tie  Contrat  dc  Lounge,  n.  172. 

'  Cloutman  v.  Tunison,  1  Sumner's  R.  373. 

'  iJrmj  V.  T/if  Ainlmtln,  Dec's  R.  48.     Sherwood  v.  Mlnlosh,  Ware's 
R.  118. 

'  Stms  v.  Sundry  Manners,  2  Pelers's  Adm.  R.  393.     Bray  v.  Tin:  Ala- 
lanta.  Bee's  R.  48. 


136  CONSri.S  TO   UKCI.AIM  DESEUTEUS,   ETC. 

highly  ponal,  and  nuist  be  strictly  construed.  The  en- 
try must  he  nuide  on  tlie  day  when  the  mariniM'  absents 
himself:  it  must  state  the  name  of  the  mariner,  and  it  is 
not  suffKit'ul  to  state  that  the  crew  were  absent  ;  it  mnst 
state  that  the  absence  was  without  leave  ;  and  there 
must  be  one  continued  absence  of  forty-eight  hours.^ 
The  entry  in  this  form,  to  produce  the  statute  forfeiture, 
is  indispensable,  although  the  absence  was  permanent, 
and  although  it  occurred  after  the  vessel  arrived  at  the 
last  port  of  delivery.-  But  the  entry  in  the  log-book, 
although  it  complies  with  these  requisitions,  is  not  in- 
controvertible ;  and  although  parol  evidence  is  inadmis- 
sible to  prove  a  statute  desertion,  yet  parol  evidence  is 
admissible  to  falsify  the  entry  of  desertion.^ 

The  statute  of  1840,  chap.  23,  makes  it  the  duty  of 
consuls  and  commercial  agents  of  the  United  States  "  to 
reclaim  deserters  and  discountenance  insubordination  by 
every  means  witiiin  th(;ir  power  ;  and  where  the  local 
authorities  can  be  usefully  employed  for  that  purpose,  to 
lend  thciir  aid  and  use  their  exertions  to  that  end  in  the 
most  effectual  manner."''  "  In  all  cases  where  deserters 
are  apprehended,  the  consul  or  commercial  agent  shall 
inquire  into  the  facts  ;  and,  if  satisfied  that  the  desertion 

1  Cloutman  v.  Tunison,  1  Sumner's  R.  373.  The  Phoebe  v.  Dignvm,  1 
Washington's  R.  48.  The  Rovena,  Ware's  R.  309.  Wood  v.  Ntmrod, 
Gilpin's  R.  86.  Whiton  v.  The  Commerce,  1  Peters's  Adm.  R.  160.  Ma- 
lone  V.  The  Mar,/,  Ibid.  169.  Jones  v.  The  Phanix,  Ibid.  201.  Thompson 
V.  The  Philadelphia,  Ibid.  210.     Hrrron  v.  The  Peggy,  Bee's  R.  57. 

'^  Knagg  V.  Goldsmith,  Gilpin's  R.  207. 

^  Orne  v.  Townsend,  4  Mason's  R.  541.  Malonev.  The  Mary,  1  Peters's 
Adm.  R.  139.  Whiton  v.  The  Commerce,  Ibid.  IGO.  Jones  v.  The  Pha- 
nix,  Ibid.  201. 

*  Act  U.  S.  20th  July,  1840,  chap.  23,  sect.  11. 


ABSENCE.  137 

was  caused  by  unusual  or  cruel  treatment,  the  mariner 
shall  be  discharged,  and  receive,  in  addition  to  his  wages 
to  the  time  of  the  discharge,  three  months'  pay  ;  and  the 
officer  discharging  him  shall  enter  upon  the  crew-list  and 
shipping  articles  the  cause  of  discharge,  and  the  particu- 
lars in  which  the  cruelty  or  unusual  treatment  consisted, 
and  subscribe  his  name  thereto  officially."  ^ 

5.  Absence.  We  have  already  seen,  that  the  mari- 
time law  recognises  as  a  substantive  ofience,  the  absence 
of  a  seaman,  without  leave,  from  his  vessel ;  and  it  may 
be  said  to  comprehend  all  absences  which  do  not  amount 
to  desertion  by  the  general  or  the  statute  law.^  The 
penalties  attached  by  the  maritime  law  to  such  absences 
as  do  not  amount  to  desertion  are  corporal  chastisement; 
or  damages  by  way  of  set-off  against  the  claim  for 
wao-es;^  including  the  expenses  of  procuring  other  ser- 
vice, of  demurrage,  and  other  injuries  and  losses  occa- 
sioned by  the  absence  of  the  mariner.^  These  absences 
give  rise  to  little  difficulty  in  the  application  of  the  pen- 
alties, when  occurring  in  a  foreign  port ;  but  where  a 
seaman  leaves  the  vessel  on  her  arrival  at  the  home  port, 
before  the  discharge  of  the  cargo,  a  question  that  may 
be   embarrassing   is   presented,  whether  the   mariner  is 

'  Act  U.  S.  20th  July,  1840,  chap.  23,  sect.  17. 

*  Ante,  p.  28  —  33. 

'  VOrd.  de  la  Marine,  liv.  2,  til.  7,  art.  3.  Valin  Comm.  tome  i,  p.  534, 
et  seq.  The  Ship  Mentor,  4  Mason's  R.  84.  The  Baltic  Merchant,  Ed- 
wards's Adm.  R.  86. 

*  Lois  D'Oleron,  art.  5.  Pardessus,  tome  i,  p.  326.  Consolato  del 
Mare,  c\\.  124  [109].  Tard.  tome  ii,  p.  147.  i:  Ord.  de  la  Marine,Y\\.2, 
tit.  7,  art.  5.  Valin,  Comin.  tome  i,  p.  549.  Sncllv.  The  Independence, 
Gilpin's  R.  140.  Brown  v.  T/ie  Neptune,  Ibid.  89.  Jlcrron  v.  The  Peggy, 
Bee's  R.  57. 

18 


138  ABSENCE. 

bound  to  wait  the  unlivery  of  the  carj;o  ?  By  the  gene- 
ral principles  of  law  he  is  so  bound.  In  the  case  of  The 
Baltic  Merchant,  Sir  William  Scott  said,  that  "  by  inter- 
pretation of  law,  the  voyage  is  not  completed  by  the 
mere  fact  of  arrival  ;  the  act  of  mooring  is  an  act  to  be 
done  by  the  crew,  and  their  duty  extends  to  the  time  of 
the  unlivery  of  the  cargo.  There  is  no  period  at  which 
the  cargo  is  more  exposed  to  hazard,  than  when  it  is  in 
the  act  of  being  transferred  from  the  ship  to  the  shore, 
and  therefore  the  law,  not  only  the  old  law,  but  particu- 
larly the  statute  by  which  the  West  India  trade  has  been 
in  later  times  regulated,  [the  case  before  him  being  of  a 
West  India  shij),]  has  enjoined  in  the  strictest  manner 
that  the  mariners  shall  stay  by  the  vessel  until  the  cargo 
be  actually  delivered.  I  take  this  to  have  been  always 
a  part  of  the  duty  of  mariners,  their  contract  is  legally 
understood  to  go  this  length,  and  there  never  can  have 
been  a  time  when  the  owner  was  not  entitled  to  some 
consideration  against  the  mariners,  on  account  of  the  non- 
completion  of  the  contract.  This  is  a  consideration  not 
in  moclum  poenas,  but  it  is  a  civil  compensation  for  injury 
received  existing  in  all  reason  and  justice  antecedently  to 
any  statute  upon  the  subject."^  In  a  subsequent  case, 
many  years  afterwards,  the  same  eminent  person  refers 
to  his  former  annunciation  of  the  doctrine,  and  reaffirms 
the  principle  that  the  law  of  England,  in  ordinary  cases, 
requires  the  mariner  to  stay  by  the  shij)  till  the  discharge 
of  the  cargo."  The  same  doctrine  has  been  affirmed  by 
Mr.  Justice  Story,  in  the   case  of  Cloutman  v.  Tiinison, 


1 


The  Baltic  Merchant,  Edwards's  Adm.  R.  91. 


»  The  Cambridge,  2  Haggard's  Adm.  R.  246. 


ABSENCE.  139 

where  he  distinguished  between  the  forfeiture  of  the  en- 
tire wages,  for  an  act  of  desertion,  (before  the  vessel  is 
moored,)  and  compensation  due  to  the  owner  for  dam- 
ages occasioned  by  absence  before  or  during  the  unlivery 
of  the  cargo. ^ 

The  general  principle,  however,  may  be  somewhat 
controlled  by  the  usage.^  In  most  of  the  ports  of  this 
country,  it  is  the  custom  to  discharge  the  mariners  after 
the  vessel  is  moored,  and  to  employ  other  persons  to  un- 
lade the  cargo.^  Such  a  usage  does  not,  however,  take 
out  of  the  hands  of  the  owner  the  right  to  enforce  the 
general  principle.  It  merely  amounts  to  this  ;  that  when 
the  usage  is  pleaded,  and  established  by  evidence  that 
shows  it  to  be  so  uniform,  general,  and  of  so  long  stand- 
ing, that  it  may  fairly  be  considered  as  entering  into  and 
making  part  of  the  implied  terms  of  the  contract,  then 
the  assent  of  the  owner  or  master  to  the  departure  of  the 
seamen  is  to  be  presumed.  But  if,  on  the  other  hand, 
the  will  of  the  owner  or  master  is  signified  to  the  mari- 
ner, that  he  shall  await  the  delivery  of  the  cargo,  he  is 
bound,  by  the  general  principles  of  law  applicable  to  his 
contract,  to  do  so  ;  and  is  liable  in  damages  if  he  do  not. 
This  I  understand  to  be  the  result  established  by  the  case 
of  Cloutman  v.  Tunison,  (taken  in  connection  a\  ith  the 
other  cases,)  where  damages  were  decreed  in  set-off 
against  the  wages  of  a  second  mate,  who  left  the  vessel 
before  the  discharge   of  the  cargo,   against  the   kno^^n 


'   Cloutman  v.  Tunison,  1  Sumner's  R.  373. 

*  rotliirr,  hmia-rrs  Mar.  n.  171,  172.     The  Afctn/,  Ware's  R.  451. 
=■  Duula|)"s  Adni.  rraclice,  98,  99.      The  Mary,  Ware's  R.  4ol.     Hastings 
et  al.  V.  The  Happy  Return,  1  Pelcrs's  Adm.  R.  253. 


140  ABSENCE. 

will  c)l'  hoili  [\\c  inasirr  and  owners. '  The  court,  in  this 
case,  (Itemed  the  owner  entitled  not  merely  to  a  compen- 
sation lor  the  loss  of  the  service  of  the  second  mate  dur- 
ing the  period  of  his  absence,  but  for  something  more,  as 
a  just  admonition  to  officers  having  such  high  and  respon- 
sible duties  devolved  upon  them,  and  designedly  depart- 
ing from  them. 

In  addition  to  the  general  law^  the  act  for  the  regula- 
tion of  seamen  has  likewise  provided  penalties  against 
absence  falling  short  of  desertion.  By  the  second  sec- 
tion, which  applies  to  absences  before  the  vessel  has  left 
her  home  port  and  after  the  contract  has  been  executed, 
an  entry  of  the  mariner's  name,  and  of  the  time  that  he 
neglects  to  render  himself  on  board  after  the  time  ap- 
pointed in  the  contract,  is  to  be  made  in  the  log-book, 
on  the  day  when  such  neglect  occurs  ;  and  if  this  requi- 
sition is  complied  with,  the  mariner  forfeits  one  day's 
pay  for  every  hour  of  such  neglect.-     Upon  this  section, 

'  Cloutman  v.  Tunison,  1  Sumner's  R.  373.  See  also  The  Mary,  Ware's 
R.453.  Hastings  \.  The  Happy  Return,!  Peters's  Adm.  R.  253.  Webb 
V.  Duckingfield,  13  Johns.  R.  390.  Brown  v.  Jones,  2  Gallison's  R.  477, 
482. 

2  Act  U.  S,  20  July,  1790,  sec.  2.  "  That  at  the  foot  of  every  such  con- 
tract, there  shall  be  a  raeinorandura  in  writing,  of  the  day  and  the  hour  on 
which  such  seaman  or  mariner,  who  shall  ship  and  subscribe,  shall  render 
themselves  on  board,  to  begin  the  voyage  agreed  upon.  And  if  any  such 
seaman  or  mariner  shall  neglect  to  render  himself  on  board  the  ship  or  vessel, 
for  which  he  has  shipped,  at  the  time  mentioned  in  such  memorandum,  and  if 
the  master,  commander,  or  other  officer  of  the  ship  or  vessel,  shall,  on  the  day 
on  which  such  neglect  happened,  make  an  entry  in  the  log-book  of  such  ship  or 
vessel,  of  the  name  of  such  seaman  or  mariner,  and  shall,  in  like  manner,  note 
the  time  that  he  so  neglected  to  render  himself,  {after  the  time  appointed),  every 
such  seaman  or  mariner  shall  forfeit,  for  every  hour  tvhich  he  shall  so  neglect 
to  render  himself,  one  day's  pay,  according  to  the  rate  of  wages  agreed  upon, 
to  be  deducted  out  of  his  wages.     And  if  any  such  seaman  or  mariner  shall 


ABSENCE.  141 

it  has  been  held,  that  the  mariner  may  prove-  a  spe- 
cial indulgence  granted  by  the  master  to  be  absent  be- 
yond the  time  specified  in  the  articles,  to  rebut  the  proof 
made  by  the  log-book.^ 

By  ihe  fifth  section,  which  applies  to  absences  after 
the  voyage  has  commenced,  and  the  vessel  has  left  her 
home  port,  an  entry  is  to  be  made  in  the  log-book  of  the 
name  of  the  mariner  and  of  the  day  on  which  he  absents 
himself;  and  if  he  returns  to  his  duty  within  forty-eight 
hours,  he  forfeits  three  days'  pay  for  every  day  of  such 
absence  ;  if  he  is  absent  more  than  forty-eight  hours,  it 
amounts,  as  we  have  already  seen,  to  a  desertion.^     The 

wholly  neglect  to  render  himself  on  board  of  such  ship  or  vessel,  or  having 
rendered  himself  on  board,  shall  afterwards  desert  and  escape,  so  that  the 
ship  or  vessel  proceed  to  sea  without  him,  every  such  seaman  or  mariner 
shall  forfeit  and  pay  to  the  master,  owner,  or  consignee,  of  the  said  ship 
or  vessel,  a  sum  equal  to  that  which  shall  have  been  paid  to  him  by  ad- 
vance at  the  time  of  signing  the  contract,  over  and  besides  the  sum  so  ad- 
vanced, both  which  sums  shall  be  recoverable  in  any  court,  or  before  any 
justice  or  justices  of  any  state,  city,  town,  or  county,  within  the  United 
States,  which,  by  the  laws  thereof,  have  cognizance  of  debts  of  equal  value, 
against  such  seaman  or  mariner,  or  his  surety  or  sureties,  in  case  he  shall 
have  given  surety  to  proceed  the  voyage." 

'   Thompson  v.  The  Philadelphia,  1  Peters's  Adm.  R.  210. 

*  Sec.  5.  "  That  if  any  seaman  or  mariner  who  shall  have  subscribed  such 
contract  as  is  herein  before  described,  shall  absent  himself  from  on  board  the  ship 
or  vessel,  in  which  he  shall  so  have  shipped,  without  leave  of  the  master  or 
officer  commanding  on  board  ;  and  the  mate,  or  other  officer  having  charge  of 
the  log-book,  shall  make  an  entry  therein  of  the  name  of  such  seaman  or  mari- 
ner, on  thr  day  on  which  he  shall  so  absent  himself,  and  if  such  seaman  or  mar- 
iner shrill  return  to  his  duty  within  forty-eight  hours,  such  seaman  or  mariner 
shall  forfeit  three  days'  pay  for  every  day  which  he  shall  so  absent  himself  to 
be  deducted  out  of  his  wages  :  but  if  any  seaman  or  mariner  shall  absent 
himself  for  more  than  forty-cigiit  hours  at  one  lime,  he  shall  forfeit  all  the 
wages  due  to  him,  and  all  bis  goods  and  chattels  which  were  on  board  the 
said  ship  or  vessel,  or  in  any  store  where  they  may  have  l)ccn  lodged  at  the 
time  of  his  desertion,  to  the  use  of  the  owners  of  the  ship  or  vessel,  and 


142  EMBEZZLEMENT. 

same   iTqnisitions,  as  to  the  entry  in   tlic   lo^-l)ook,  must 
be  complieil  w'aU  in  all  these  eases  of  absence.* 

The  fourth  section  enacts  a  penalty  against  harboring 
or  secreting  any  seaman  or  mariner,  belonging  to  any 
ship  or  vessel,  knowing  them  to  belong  thereto.^ 

6.  Embezzlement  is  the  unlawful  abstraction  by  a 
mariner  of  any  portion  of  the  cargo,  or  of  the  ship's 
stores,  tackle,  ap})arel  or  furniture.  As  the  master  and 
owner  arc  responsible  to  the  shipi)er  for  the  cargo,  and 
as  the  owner  is  to  be  protected  from  the  plundering  of 
liis  own  property  by  those  to  whom  he  entrusts  it,  where 
the  embezzlement  is  traced  home  to  a  particular  mariner, 
he  is  responsible  for  the  full  value  ;  and  in  a  suit  for  his 
wages  the  Admiralty  will  make  the  proper  deduction,  or 
even  under  some  circumstances  sustain  a  direct  suit  for 
recompense  in  damages.^  But  where  the  embezzlement 
is  not  fixed  upon  any  individual,  though  shown  to  have 

moreover  shall  be  liable  to  pay  to  him  or  them,  all  damages  which  he  or 
they  rnay  sustain  by  being  obliged  to  hire  other  seamen  or  mariners  in  his 
or  their  place ;  and  such  damages  shall  be  recovered  with  costs,  in  any 
court,  or  before  any  justice  or  justices,  having  jurisdiction  of  the  recovery 
of  debts,  to  the  value  of  ten  dollars,  or  upwards." 

»  See  ante,  p.  135  —  136. 

^  Sec.  4.  "  That  if  any  person  shall  harbor,  or  secrete,  any  seaman  or 
mariner,  belonging  to  any  ship  or  vessel,  knowing  them  to  belong  thereto, 
every  such  person,  on  conviction  thereof,  befotc  any  court  in  the  city,  town 
or  county,  where  he,  she,  or  they  may  reside,  shall  forfeit  and  pay  ten  dol- 
lars for  every  day,  which  he,  she,  or  they,  shall  continue  so  to  harbor  or 
secrete  such  seaman  or  mariner,  one  half  to  the  use  of  the  person  prose- 
cuting for  the  same,  the  other  half  to  the  use  of  the  United  States  ;  and  no 
sum  exceeding  one  dollar,  shall  be  recoverable  from  any  seaman  or  mariner 
by  any  one  person,  for  any  debt  contracted  during  the  time  such  seaman  or 
mariner  shall  actually  belong  to  any  ship  or  vessel,  until  the  voyage,  for 
which  such  seaman  or  mariner  engaged,  shall  be  ended." 

3  Spurr  v.  Pearson,  1  Mason's  R.  104. 


EMBEZZLEME^'T.  143 

been  committed  by  the  crew,  and  not  by  other  persons ; 
or  where  it  is  shown  not  to  have  been  in  all  probability 
committed  by  the  crew,  but  by  persons  not  of  the  crew  ; 
there  has  been  some  conflict  in  the  authorities  as  to  when 
and  to  what  extent  the  seamen  are  liable.  In  1801,  it 
was  held  in  the  District  Court  of  Pennsylvania  that  the 
seamen  are  prima  facie  responsible  for  such  losses ;  that 
the  burthen  of  proof  is  upon  them  to  show  that  the  fact 
was  committed  by  others ;  and  that  unless  this  is  shown, 
they  are  answerable  in  a  general  contribution  ;^  and  also 
that  where  the  guilt  is  only  fixed  upon  some  of  the  crew, 
that  the  policy  of  the  law  obliges  the  mariners,  (the  mas- 
ter and  officers  as  well  as  the  seamen,)  engaged  for  the 
voyage,  to  be  responsible  for  each  other,  so  as  to  sustain 
the  claim  for  a  general  contribution  by  the  whole  crew.~ 
In  the  District  Court  of  South  Carolina  District  it  has 
also  been  held  that  all  are  chargeable,  where  none  in  par- 
ticular can  be  criminated  ;^  but  that  the  innocence  of  any 
one  of  the  crew,  if  established,  exempted  him  from  con- 
tribution.^ 

This  doctrine  of  a  general  contribution  was  subse- 
quently questioned  and  denied,  in  the  Court  of  Common 
Picas  in  England  and  in  the  Supreme  Court  of  the  State 
of  New  York.  The  case  in  England  jirocecded  upon 
the  terms  of  the  contract :  "  that  each  seaman  and  mari- 
ner, who  shall  well  and  truly  perform  the  above  men- 
tioned voyage,  (provided  always  that  there  be  no  plun- 
derage, embezzlement,  or  other  unlawful  acts  committed 

'  Marinrrs  V.  T?ie  Kensington,  1  Pcters's  Adm.  R.  239. 

•  Cranmrr  v.  T/ir  Fair  Arnrrican,  1  Pcters's  Adm.  R.  243. 
'  Frakrick  v.  The  Bng  Fmtin/,  Bee's  R.  202. 

♦  Sullivan  V.  Ingraham,  Bee's  R.  182. 


144  EMBEZZLEMEIST. 

on  the  said  vessel's  eaigo  or  stores,)  shall  be  entitled  to 
their  wages  or  hire  that  may  become  due  to  hitn  pursu- 
ant to  this  agreement."    The  court  held  that  these  words 
M  ere   to  be  construed  respectively  to  every  seaman  who 
should  plunder,  embezzle,  or  commit  an  unlawful  act.^ 
The  case  in  New  York  proceeded  upon  the  general  doc- 
trine of  the  maritime  law,  and  it  was  held  that  if  the 
circumstances  of  the  case  do  not  fix  the  presumption  of 
embezzlement  upon  any  of  the  crew,  they  ought  not  to 
contribute."     More  recently,  the  whole  subject  received 
the   most  thorough  revision  in  the  Circuit  Court  of  the 
United  States  for  the  First  Circuit,  which  leaves  nothing 
to  be  done  in  the  way  of  research  into  the  maritime  law, 
upon  this  question.    The  learned  judge  concludes,  "  Upon 
the  whole  my  opinion  is,  that  the  rule  of  contribution 
contended  for,  cannot  be  sustained  as  a  general  rule  of 
the  maritime  law ;  that  it  has  not  that  general  sanction, 
or  universal  use,  which  entitles  it  to  such  a  consideration  ; 
and  that  it  has  not  such  intrinsic  equity,  or  justice,   as 
that   in   the   absence  of  direct  authority,  it  ought   to  be 
adopted  as  a  limit  upon  judicial  discretion.     On  the  con- 
trary, it  seems  to  me,  that  the  true  principles,  which  are 
to  govern  in  these  cases,  are  those  of  the  general  con- 
tract of  hire  ;  and  that  the   most  that  the  maritime  law 
has  done,  is  to  enforce  these  principles,  by  allowing  the 
owner  and  master  to  make  an  immediate  deduction  from 
the  wages   of  the  offending   parties,   instead  of  driving 
them   to   the  circuity  of  an  action   for   damages.     The 
result  of  this  opinion  is,  that  where  the  embezzlement 


'   Thompson  V.  Collins,  4  Bos.  and  Pull.  347. 
•  Lewis  V.  Davis,  3  Johns.  R.  17. 


NEGLIGENCE  — CONTRIBUTION.  145 

has  arisen  from  the  fault,  fraud,  connivance  or  negligence 
of  any  of  the  crew,  they  are  bound  to  contribute  to  it  in 
proportion  to  their  wages  ;  that  where  the  embezzlement 
is  fixed  on  an  individual,  he  is  solely  responsible ;  that 
where  the  embezzlement  is  clearly  shown  to  have  been 
made  by  the  crew,  but  the  particular  offenders  are  un- 
known, and  from  the  circumstances  of  the  case,  strong 
presumptions  of  guilt  apply  to  the  whole  crew,  all  must 
contribute  ;  but  that  where  no  fault,  fraud,  connivance  or 
ne^liiience  is  proved  against  the  crew,  and  no  reasonable 
presumption  is  shown  against  their  innocence,  the  loss 
must  be  borne  exclusively  by  the  owner  or  master ;  that 
in  no  case  arc  the  innocent  part  of  the  crew  to  contribute 
for  the  misdemeanors  of  the  guilty ;  and  further,  that  in 
a  case  of  uncertainty,  the  burthen  of  the  proof  of  inno- 
cence does  not  rest  on  the  crew ;  but  the  guilt  of  the 
parties  is  to  be  established  beyond  all  reasonable  doubt, 
before  the  contribution  can  be  demanded."^ 

7.  Negligence,  in  any  point  peculiarly  the  duty  of 
the  individual  mariner,  or  of  the  crow,  by  which  a  loss 
happens,  is  a  maritime  offence,  entitling  the  owner  to 
compensation  for  the  injury  occasioned,  which  is  gene- 
rally made  availabh.'  by  way  of  set-off  to  the  claim  for 
wages.^  The  same  |)rincij)les  should  govern,  in  respect 
to  general  contribution  or  individual  liability,  as  in  the 
case  of  emb(;zzlement.  J>ut  there  can  1)(^  no  set-off  or 
retainer  for  contingent  damages.     If  the   owner  has  not 

'  !ipnrr  rt  nl.  v.  P^arMn,  1  Mason's  R.  111,115.  Sec  alaO  Abbot  on 
Shipping,  p.  472, 473,  and  nolcs.     Edit.  1829. 

^  Wilson  V.  Thr  Br/rcdric,  I  Pctcrs's  Adm.  H.  288.  Thome  v.  White, 
Ibid.  108,  173.  Brown  v.  Thr  Nejilune,  Gilpin's  R.  89.  The  New  Phanix, 
2  H:i-?:ird'3  R.  420. 

19 


146  DRUNKENNESS. 

been  compclliHl  to  make  good  losses  haj)pening  to  the 
cargo,  he  cannot,  in  prospect  of  being  called  upon  to  do 
so,  claim  contrilxition  from  the  seamen.' 

8.  JJkunkenness,  as  incajjaeitating  from  general  mar- 
itime employment,  may  be  regarded  as  a  substantive 
olVence.  "  It  is,"  says  Mr.  Justice  Story,  "  of  such  rank- 
ness  and  injurious  tendency,  both  as  to  discipline  and 
service  on  shipboard,  that  it  usually  calls  for  the  animad- 
version of  the  Court,  and  not  unfrequently  is  followed  by 
punishment  in  the  shape  of  diminished  compensation  and 
wages.  Where  it  is  hal/itual  and  gross,  it  may  indeed 
be  visited  with  a  total  forfeiture  of  wages  ;  but  where  it 
is  only  occasional,  or  leaves  much  meritorious  service  be- 
hind, it  is  thought  quite  sufficient  to  recover,  in  damages, 
the  amount  of  the  actual  or  presumed  loss,  resulting  frc  m 
such  a  violation  of  the  mariner's  contract,  and  imperfect 
performance  of  duty."-  The  British  Admiralty  courts 
have  made  the  same  distinction  between  an  act  and  a 
habit  of  intoxication  ;  between  drunkenness  in  port,  and 
during  the  voyage  ;  ^  and  Dr.  Lushington  has  recently 
held,  that  a  refusal  to  obey  orders,  while  in  a  state  of 
intoxication,  if  no  more  than  the  sini;le  act  of  drunken- 
ness be  proved,  ought  not  to  be  visited  with  an  entire 
forfeiture  of  wages,  if  occurring  in  port ;  but  that  such 
an  act,  whilst  the  vessel  is  at  sea,  would  be  of  a  very 
serious  character.^  Lord  Stowell  had  previously  held, 
that  occasional  acts  of  drunkenness,  not  more  than  usual 


'   The  Washington,  1  Peters's  Adm.  R.  219. 
^   Orne  V.  Townsend,  4  Mason's  R.  541. 
'  The  Exeter,  2  Robinson's  Adm.  R.  216. 

*  The  Blake,  reported  in  the  Monthly  Law  Mag.  vol.  iv,  p.  90,  London, 
March,  1839.     See  also  The  New  Phcenix,  1  Haggard's  Adm.  R.  198. 


DISOBEDIEJNCE. 


147 


with  seamen,  and  latterly  (when  more  frequent)  arising 
from  the  undue  force  given  by  bodily  disease  to  the  mod- 
erate use  of  strong  liquors,  will  not  enure  to  the  entire 
forfeiture  of  wages.^ 

9.  Disobedience  of  Orders.  This  is  an  offence  of 
a  very  grave  character,  punishable  by  corporal  chastise- 
ment, or  by  the  forfeiture  of  part  or  the  whole  of  the 
mariner's  wages.  But  it  is  not  a  single  neglect  of  duty, 
or  a  single  act  of  disobedience,  which  ordinarily  carries 
with  it  so  severe  a  penalty.  There  must  be  a  case  of 
high  and  aggravated  neglect  or  disobedience,  importing 
the  most  serious  mischief,  peril,  or  wrong ;  a  case  calling 
for  exemplary  punishment  and  admitting  of  no  reasona- 
ble mitigation  ;  a  case  involving  a  very  gross  breach  of 
the  contract  for  hire ;  or  it  nmst  be  habitual,  and  pro- 
duce such  a  general  diminution  of  duty,  as  goes  to  the 
very  essence  of  the  contract.^  It  has  also  been  held, 
that  a  refusal  to  do  duty,  at  a  moment  of  high  excite- 
ment from  punishment,  if  not  followed  by  obstinate  per- 
severance, is  not  a  forfeiture  of  all  wages.^ 

'   The  Lady  Campbell,  2  Haggard's  R.  5. 

*  The  Mentor,  4  Mason's  R.  84.  See  also,  The  Exeter,  2  Robinson's 
Adm.  R.  216. 

'  Orne  v.  Townsend,  4  Mason's  R.  541.  See  infra,  part  4,  chap.  3,  as  to 
the  principles  regulating  a  total,  or  partial  forfeiture  of  wages. 


CHAPTER  V. 

OF    THE    DISCHARGE    OF    SEAMEN. 

It  is  a  universally  recognised  principle  of  the  maritime 
law,  and  results  from  the  contract  between  the  parties, 
that  the  master  cannot  discharge  a  seaman  before  the 
complete  fulfilment  of  their  mutual  obligations,  without  a 
legally  valid  reason.'  What  constitutes  such  valid  rea- 
son has  been  ascertained  by  different  standards  in  the 
positive  law  of  different  maritime  nations  ;  but  the  prin- 
ciple has  always  been  the  same,  that  the  contract  is  not 
to  be  rescinded  by  the  master,  until  the  mariner's  con- 
duct has  been  such,  that  the  law  of  his  country  deems 
him  unfit  to  remain  on  board,  or  that  he  has  forfeited  the 
rights  acquired  under  his  contract.  The  Consolato  as- 
signs but  three  causes  for  which  a  mariner  may  be  dis- 
missed :  theft,  quarrelling,  and  disobedience  of  orders  ; 
and  it  adds  the  restriction,  that  for  these  he  is  not  to  be 
discharged  on  the  first  offence,  but  only  on  its  recurrence 
for  the  fifth  time.^  The  laws  of  the  Hanse  Towns  de- 
clare, that  if  the  seaman  misbehaves  "  in  a  notorious 
manner,"  he  may  be  dismissed.^     The  Marine  Ordinance 

*  "  Sans  cause  valable"  is  the  language  of  the  French  Ordinance. 

*  Consolato  del  Mare,  chap.  80  [125].     Pard.  tome  ii,  p.  122. 

*  Droit  Mar.  de  la  Ligue  Ans.  {Reds  de  1591,  art.  42;)    Pard.  tome  ii, 
p.  519. 


DISCHARGE  — BY  THE  GENERAL  LAW.  149 

of  Louis  XIV.  and  the  Code  de  Commerce  make  use  of 
the  general  terms  "  for  valid  reasons."  ^  Pothier  enu- 
merates among  such  reasons,  incompetency,  blasphem- 
ing, theft,  stubbornness,  and  quarrel Ung  to  the  extent  of 
producing  disorder  in  the  ship."  More  recent  commen- 
tators upon  the  Code  enumerate  absence  without  leave, 
(which  is  expressly  made  an  offence  for  which  the  mari- 
ner may  be  discharged,^)  incompetency,  insubordination, 
and  misconduct  generally.''  Incompetency  for  the  sta- 
tion contracted  for  is  not,  however,  by  the  general  mari- 
time law,  a  valid  reason  for  a  discharge  in  a  foreign 
country.  The  mariner  may  be  degraded,  or  his  compen- 
sation may  be  diminished  ;  but  I  apprehend,  that  the 
French  rule  (if  it  be  one)  is  an  exception  to  the  more 
universal  rule,  and  that  a  merely  innocent  incompetency 
is  not  alone  a  sufficient  ground  for  dismissing  the  seaman 
altosether  from  the  service  of  the  vessel.^ 

Such  is  the  spirit  of  the  foreign  law.  That  of  our  own 
and  the  English  tribunals  has  been,  not  to  assign  specific 
offences,  for  which  a  mariner  may,  under  all  circum- 
stances, be  discharged ;  but  it  is  laid  down  generally, 
that  the  master  may  discharge  a  seaman  from  the  vessel 
before  the  termination  of  the  voyage,  for  a  legal  cause, 
but  not  for  slight  or  venial  offences,  and  certainly  not  for 
a  single  offence,  unless  of  a  very  aggravated  character ; 
thus  leaving  the  master's  justification  to  dejiend  upon 
the  dejrree  and  nature  of  the  mariner's  misconduct,  under 

'  L'Ord.  de  la  Marine,  liv.  3,  tit.  4,  art.  10.     Code  de  Commerce,  art.  270. 

*  Pothier,  Louairfs  Mar.  n.  209. 
'  Code  dr.  Commerce,  art.  204. 

*  Sautayra,  sur  le  Code  de  Com.  p.  175, 

*  See  ante,  Part  I.  chap.  2,  p.  29—30. 


150  niSCFIAUCK  — HY  THE  GENERAL  I, AW. 

all  the  circumstances  of  the  case.  Thus,  if  the  charge 
be  negligence,  drunkenness,  disobedience,  or  dishonesty, 
the  question  would  be,  whether  the  misconduct  was  of 
that  degree  as  to  amount  to  an  habitual  inattention  to  or 
unfitness  for  duty,  having  always  in  view  the  particular 
station  of  the  party  and  the  nature  of  his  duty.^  If  the 
allegation  be,  that  the  seaman  is  a  dangerous  person, 
from  a  spirit  of  insubordination,  or  hostility  to  the  mas- 
ter, it  has  been  held  that  the  master  must  show  that  the 
danger  is  such  as  would  affect  the  mind  of  a  man  of  or- 
dinary firmness.^ 

But  even  in  cases  of  aggravated  offences,  or  of  a  con- 
tinued course  of  conduct  which  would  Justify  the  dis- 
charge of  a  seaman,  if  he  repents  and  offers  amends,  the 
principle  which  is  always  o])erative  in  his  favor  against 
all  kinds  of  forfeiture,  with  very  rare  exceptions,  inter- 
venes to  restore  him  to  his  rights,  and  he  is  ordinarily 
entitled  to  be  received  again  on  board.^  To  deprive  a 
mariner  of  the  benefit  of  this  rule,  it  should  appear  that 
the  misconduct  amounts  to  a  radical  disqualijication,  as 
dishonesty,  and  habitual  drunkenness  in  a  steward  ;  ^  or 
that  the  party  is  really  dangerous  to  the  peace  and  safety 

^  Black  V.  The  Louisiana,  2  Peters's  Adtn.  R.  271.  Thome  y.  White,  1 
Ibid.  168.  Relf  v.  The  Maria,  1  Ibid.  186.  The  Mentor,  4  Mason's  R.  84, 
102.  Orne  v.  Townsend,  Ibid.  541.  The  Exeter,  2  Robinson's  Adm.  R. 
216.     Hutchinson  v.  Coomis,  Ware's  R.  65.     The  Nimrod,  Ibid.  9. 

*  The  Nimrod,  ut  supra. 

3  Lois  D'Oleron,  art.  14.  Pard.  tome  i,  p.  333.  Whitton  v.  The  Com- 
merce, 1  Peters's  Adm.  R.  164.  Thornc  v.  White,  1  Ibid.  168.  Rclfv.  The 
Maria,  1  Ibid.  186.  Athjns  v.  Burrows,  1  Ibid.  244.  Black  v.  The  Louisi- 
ana, 2  Ibid.  268.  Orne  v.  Townsend,  4  Mason's  R.  541.  The  Mentor,  4 
Ibid.  84.  Buck  v.  Lane,  12  Serg.  &  Pt.  266.  Hutchinson  v.  Coombs, 
Ware's  R.  65. 

*  Black  V.  The  Louisiana,  ut  supra. 


DISCHARGE  —  CREW  LIST,  151 

of  the  ship.^  These  principles  receive  additional  force 
from  the  general  policy  of  the  laws  of  the  United  States, 
which  discountenance  the  discharge  of  seamen  in  foreign 
ports,  as  will  presently  be  seen  ;  and  it  has  been  held, 
that  the  certificate  of  a  consul,  that  a  seaman  was  dis- 
charged with  his  approbation,  will  not  prevent  the  Court 
from  inquiring  into  the  cause  of  the  discharge,  and 
awarding  damages,  if  proper.- 

By  a  law  of  the  United  States,  the  master  of  every 
vessel  bound  on  a  foreign  voyage  is  required  to  deliver  to 
the  collector  of  the  customs  of  the  port  from  w  hich  he 
clears,  a  list  of  his  ship's  company,  containing  their  names, 
places  of  birth  and  residence,  and  a  description  of  their 
persons,  to  w^hich  the  master  is  to  make  oath ;  a  certified 
copy  of  this  list  is  then  given  to  the  master  by  the  col- 
lector :  the  master  is  also  required  to  enter  into  a  bond, 
with  sufficient  sureties,  in  the  sum  of  four  hundred  dol- 
lars, that  he  will  exhibit  such  certified  copy  of  the  list  to 
the  first  boarding  officer,  at  the  first  port  in  the  United 
States  at  which  he  shall  arrive,  and  then  and  there  produce 
the  persons  named  in  the  list  to  the  said  boarding  officer, 
whose  duty  it  is  to  examine  the  men  with  the  list,  and  to 
report  the  same  to  the  collector ;  —  but  such  bond  is  not 
to  l)e  forfeited,  on  account  of  the  master's  not  producing 
to  the  boarding  ofiicer  any  of  the  persons  contained  in  the 
said  list,  who  may  be  discharged  in  a  foreign  country, 
with  the  consent  of  the  consul,  vice  consul,  commercial 
agent,  or  vice  commercial  agent,  there  residing,  signified 

'  The  Nimrod,  Ware's  R.  9. 

'  Ifulchin.sim  v.  Coombs,  Ware's  R.  C5.  The  consul's  certificate  is,  by 
the  statute  of  18U3,  made  a  justification  as  against  the  penalty  of  the  mas- 
ter's bond  to  the  government,  not  against  the  seaman's  action  for  damages. 


152  DISCHARGE  — CRKW  LIST. 

in  wiitiiiii"  under  liis  liand  and  official  seal,  to  ])C  produced 
to  the  collector  with  the  otiicr  ])prsons  comj)()sin<i;  the  crew, 
nor  on  accoinit  of  any  person  dyini;  or  al)scondinf>,  or  beiii^ 
forcibly  impressed  into  other  service,  of  w4iich  satisfactory 
proof  shall  he  there  also  exhibited  to  the  collector.^ 

By  a  recent  act,  the  duplicate  list  of  the  crew  required 
by  the  Act  of  1803,  to  be  given  to  the  master  by  the  collec- 
tor, is  further  required  to  be  "a  fair  copy,  in  one  uniform 
hand-writing,  without  erasure  or  interlineation."-  This 
document,  as  well  as  the  certified  copy  of  the  shipping 
articles,  is  to  Ix;  produced  to  the  consul,  or  commercial 
agent  of  the  United  States,  at  any  foreign  i)ort,  "  when- 
ever he  may  deem  their  contents  necessary  to  enable  him 
to  discharge  the  duties  imposed  upon  him  by  law  toward 
any  mariner  applying  to  him  for  his  aid  or  assistance."^ 
"  All  interlineations,  or  writing  in  a  hand  different  from 
that  in  which  such  duplicates  were  originally  made,  shall  be 
deemed  fraudulent  alterations,  working  no  change  in  such 
papers,  unless  satisfactorily  explained  in  a  manner  con- 
sistent with  innocent  purposes,  and  the  provisions  of  law 
which  guard  the  rights  of  mariners."^  When  a  mariner 
is  shipped  in  a  foreign  port,  the  same  act  requires  that  the 
master  "  shall  forthwith  take  the  list  of  his  crew  and  the 
duplicate  of  the  shipping  articles  to  the  consul,  or  person 
who  discharges  the  duties  of  the  office  at  that  port,  who 
shall  make  the  proper  entry  thereon,  setting  forth  the  con- 
tract and  describing  the  person  of  the  mariner  ;  and  there- 
upon the  bond  originally  given  for  the  return  of  the  men, 
shall  embrace  each  person  so  shipped." "* 

'  Act  U.  S.  28  Feb.  1803,  ch.  C2,  sec.  1.  sec  the  Appendix. 

'  Act  U.  S.  20  July  1840,  sec,  1.  see  the  Appendix. 

'  Ibid.  sec.  3.  ■•  Ibid.  sec.  4.  '  Ibid. 


DISCHARGE— THREE  MONTHS'  PAY.  153 

The  third  section  of  the  Act  of  1 803  provides,  that 
*'  whenever  a  ship  or  vessel,  belonging  to  a  citizen  of  the 
United  States,  shall  be  sold  in  a  foreign  country,  and  her 
company  discharged,  or  when  a  seaman  or  mariner,  a 
citizen  of  the  United  States,  shall  with  his  own  consent 
be  discharged  in  a  foreign  country,  it  shall  be  the  duty  of 
the  master  or  commander  to  produce  to  the  consul,  vice 
consul,  commercial  agent,  or  vice  commercial  agent,  the 
list  of  his  ship's  company,  certified  as  aforesaid,  and  to  pay 
to  such  consul,  vice  consul,  commercial  agent,  or  vice 
commercial  agent,  for  every  seaman  or  mariner  so  dis- 
charged, being  designated  on  such  list  as  a  citizen  of  the 
United  Stat(^s,  three  months' pay,  over  and  above  the  wages 
which  may  then  be  due  to  such  mariner  or  seaman,  two 
thirds  thereof  to  be  paid  by  such  consul  or  commercial 
agent,  to  each  seaman  or  mariner  so  discharged,  upon  his 
engagement  on  board  of  any  vessel  to  return  to  the  United 
States,  and  the  other  remaining  third  to  be  retained  for 
the  purpose  of  creating  a  fund  for  the  payment  of  the  pas- 
sages of  seamen  or  mariners,  citizens  of  the  United  States, 
who  may  be  desirous  of  returning  to  the  United  States, 
and  for  the  maintenance  of  American  seamen  who  may 
be  destitute,  and  may  be  in  such  foreign  port;  and 
the  several  sums  retiiined  for  such  fund,  shall  be  ac- 
counted for  with  the  treasury  every  six  montiis,  hy  the 
persons  receiving  the  same."^ 

The  sale  here  contemplated  applies  only  to  the  case  of 
a  voluntary  discharge  by  tlu;  master,  and  not  to  cases 
where  the;  discharge  has  resulted  from  iniivitablc  necessity 
or  sup(  iiDi  force,  such  as  a  total  loss  by  captiin,  Icnipc^st, 
or  other  fortuitous  occurrence.     It  is  true  that  a  breaking 

'  Act  U.  f>.  28th  Feb.,  1S03,  ch.  G2,  sec.  3. 

20 


154  DISCHARGE— THRF.K  MONTHS'  PAY. 

up  of  the  voyai^o  hy  ix  disaster  at  sea,  will  exempt  the 
owners  I'roni  the  jjaymcnt  required  by  the  Act ;  but  the 
owners  will  not  be  exempted,  if  the  vessel  can  be  repaired 
at  a  reasonable  expense,  and  in  a  reasonable  time,  and 
the  burtlien  of  proof  to  show  that  she  could  not  be  so  re- 
paired, is  upon  the  owners.^  So  too,  in  a  case  of  captiue, 
the  seamen  have  a  right  to  remain  by  the  ship,  and  await 
the  result  of  the  prize  proceedings ;  and  if  the  ship  be 
afterwards  released,  so  as  to  be  able  to  j)roceed  on  her 
voyage,  and  the  crew  are  then  discharged,  they  will  be 
entitled  to  the  two  months'  })ay.~  In  all  cases  where  the 
seamen  are  so  entitled  to  receive  the  money,  if  it  is  not 
paid  over  to  the  consul,  the  whole  may  be  recovered  as 
wages  by  a  libel  in  the  Admiralty,  and  the  court  will  order 
it  to  be  distributed  to  the  United  States  and  the  seamen, 
in  the  proportion  directed  by  the  statute.^  It  has  been 
held  that  it  is  no  objection  to  the  recovery  of  the  money, 
that  the  name  of  the  seaman  is  omitted  as  an  American 
citizen,  in  the  list  of  the  crew  certified  from  the  collector's 
office,  under  the  Act  of  1 796,  ch.  36,  sec.  4,  if  he  is  named  as 
an  American  citizen  on  the  list  of  the  crew  which  the  collec- 
tor, by  this  Act,  is  required  to  certify,  and  give  to  the  master.* 
The  Act  of  1840  has  greatly  enlarged  the  discretionary 
power  of  consuls,  or  commercial  agents,  in  foreign  ports, 

'  The  Dawn,  Ware's  R.  485.     The  Juniata,  Gilpin's  R.  193. 


*  The  Saratoga,  2  Gallison's  R.  164. 


^  Emerson  v.  Hmdand,  1  Mason's  R.  45.  Ornc  v.  Townsend,  4  Mason's 
R.  541.  The  Saratoga,  2  Gallison's  R.  181.  The  Dawn,  Ware's  R.  485. 
The  Supreme  Court  of  the  State  of  New  York,  have  given  an  entirely  dif- 
ferent construction  to  the  Act,  and  held  that  as  the  payment  is  directed  to  be 
made  to  a  public  functionary,  named  in  the  Act,  unless  the  money  is  paid 
to  him,  no  action  for  it  can  be  maintained  by  the  seamen  against  the  owner, 
and,  it  would  seem  from  the  reasoning  of  the  court,  not  against  the  master. 
See  Ogden  v.  Orr,  12  Johns.  R.  143. 

*  Ome  V.  Townsend,  ut  supra. 


DISCHARGE— BY  CONSULS,  ETC.  155 

to  discharge  mariners  from  their  vessels.     It  empowers 
them,  upon  application  of  both  the  master  and  the  mari- 
ner, to  discharo;e  the  latter,  if  he  thinks  it  expedient, 
without  requiring  the  payment  of  three  months'  wages, 
under  the  provisions  of  the  Act  of  1803,  or  any  other 
sum  of  money ;  ^  and  he  may  make  such  terms  with  the 
master  as  will  save  the  United  States  from  the  liability  to 
support  the  mariner  so  discharged.-    The  public  officer  dis- 
charijin^  the  mariner  under  this  Act  is  required  to  make 
an  entry  thereof  upon  the  list  of  the  crew  and  upon  the 
shipping  articles.^     Further  powers  are  also  given  to  dis- 
charge mariners  in  case  of  a  violation  of  the  articles  in 
respect  to  the  voyage,  and  of  unseaworthiness  of  the  ves- 
sel, which  are  stated  in  the  appropriate  chapters.**     And 
where  a  mariner  has  deserted  and  been  reclaimed  by  the 
consul,  if,  on  inquiry,  he  finds  that  the  desertion  was 
caused  by  unusual  or  cruel  treatment,  he  may  discharge 
the  mariner,  who  shall  in  such  case  be  entitled  to  receive 
three  months'  pay  in  addition  to  his  wages  to  the  time  of 
the  discharge.^ 

The  fourth  section  of  the  Act  of  1803,  provides,  "  that  it 
shall  be  the  duty  of  the  consuls,  vice  consuls,  commercial 
agents,  or  vice  commercial  agents  of  the  United  States, 
from  time  to  time,  to  provide  for  the  mariners  and  seamen 
of  the  United  States,  who  may  be  found  destitute  within 
their  districts,  respectively,  sufficient  subsistence  and  pas- 
sages to  some  port  in  the  United  States,  in  the  most  rea- 

'  Act  U.  S.  20lh  July,  1840,  sec.  5.     See  Appendix.     This  Act  took  ef- 
fect upon  vessels  which  sailed  on  and  after  October  1,  1841. 

*  Ibid.  sec.  0.  ^  Ibid.  sec.  7. 

*  Ante,  Part  1,  ch.  2  and  3. 

»  Act  U.  S.  20ih  July,  ISIO,  sec.  17. 


1  CjG  consuls  to  send  home  destitute  seamen. 

soiKiblc  inaniuM',  at  ilic  expense  of  tlic  United  States, 
subject  to  such  instructions  as  the  secretary  of  state  shall 
give  ;  and  that  all  masters  and  commanders  of  vessels 
belonginji  to  citizens  of  the  United  States,  and  bound  to 
some  port  of  the  sani(>,  are  hereby  required  and  enjoined 
to  take  such  mariners  or  seamen  on  board  of  their  ships 
or  vessels,  at  the  request  of  the  said  consuls,  vice  consuls, 
commercial  agents,  or  vice  connnercial  agents,  respective- 
ly, and  to  transport  them  to  the  port  in  the  United  States 
to  whicli  such  ships  or  vessels  may  be  bound,  on  such 
terms,  not  exceeding  ten  dollars  for  each  person,  as  may 
be  agreed  between  the  said  master  and  consul,  or  com- 
mercial agent.  And  the  said  mariners  or  seamen  shall, 
if  able,  be  bound  to  do  duty  on  board  such  ships  or  ves- 
sels, according  to  their  several  abilities :  Provided,  that 
no  master  or  captain  of  any  ship  or  vessel  shall  be  obliged 
to  take  a  greater  number  than  two  men  to  every  one  hun- 
dred tons'  burthen  of  the  said  ship  or  vessel,  on  any  one 
voyage ;  and  if  any  such  captain  or  master  shall  refuse 
the  same,  on  the  request  or  order  of  the  consul,  vice  con- 
sul, commercial  agent,  or  vice  commercial  agent,  such 
captain  or  master  shall  forfeit  and  pay  the  sum  of  one 
hundred  dollars  for  each  mariner  or  seaman  so  refused,  to 
be  recovered,  for  the  benefit  of  the  United  States,  in  any 
court  of  competent  jurisdiction.  And  the  certificate  of 
any  such  consul  or  commercial  agent,  given  under  his 
hand  and  official  seal,  shall  be  prima  facie  evidence  of 
such  refusal,  in  any  court  of  law  having  jurisdiction  for 
the  recovery  of  the  penalty  aforesaid.'" 

The   seamen  who  are  thus  put  on  board  are  liable  to 
be   punished  for  offences  committed  against  any  law  of 

'  Act  U.  S.  28th  February,  1803,  ch.  62,  sec.  4. 


DISCHARGE— BY  MALICIOUS  FORCENG  ON  SHORE,  ETC.        157 

the  United  States,  in  the  same  manner  as  the  articled 
seamen  of  the  vessel.^  The  certificate  of  the  consul  is 
prima  facie  evidence  of  the  refnsal  of  an  j  master  to  take 
a  seaman  on  board,  and  of  all  the  facts  stated  in  the  en- 
acting clause,  which  are  necessary  to  bring  the  case 
within  the  penalty.'-  If  a  seaman  be  entitled  to  the 
privileges  of  an  American  seaman,  and  be  destitute,  the 
consul  is  the  proper  Judge  as  to  the  ship  on  board  of  which 
he  should  be  placed  for  his  return  to  the  United  States ; 
and  the  fact  that  the  seaman  has  deserted  from  his  ship, 
and  that  she  is  lying  in  port  at  the  time  when  he  be- 
comes destitute,  does  not  supersede  the  authority  of  the 
consul  to  require  another  American  ship  to  bring  him 
home.^ 

Congress  have  legislated  further  upon  the  unlawful 
discharge  of  mariners  abroad.  The  Act  of  1825,  chap- 
ter 276,  section  10,  provides,  "  that  if  any  master  or  com- 
mander of  any  ship  or  vessel,  belonging,  in  whole,  or  in 
part,  to  any  citizen  or  citizens  of  the  United  States,  shall, 
during  his  being  abroad,  maliciously  and  without  justi- 
fiable cause,  force  any  officer,  or  mariner,  of  such  ship  or 
vessel,  on  shore,  or  leave  him  behind,  in  any  foreign  port 
or  place,  or  refuse  to  ])ring  home  again  all  such  of  the 
officers  and  niariiKjrs,  of  such  ship  or  vessel,  whom  he 
carried  out  with  him,  as  are  in  a  condition  to  return,  and 

'   United  Stairs  v.  Sharp,  1  Peters's  Circ.  C.  R.  118. 

*  Mathews  V.  OJflrij,  3  Sumner's  R.  115. 

'  Ibid.  Foreigners,  wliile  employed  as  seamen  in  the  merchant  ships 
of  the  United  States,  are  deemed  to  be  "  mariners  and  seamen  of  the  United 
Stales,"  witliin  tin,'  I.uiguage  and  policy  of  this  Act.  The  fact  that  such 
a  foreigner  became  dcbtilute  by  desertion  from  the  ship,  does  not  deprive 
him  of  the  protection  of  the  Act,  unless  followed  up  by  engaging  in  some 
foreign  service.     Ibid. 


138        IHSCIIARGK  — BY  M.M-ICIOUS  FORCING  ON  SHORK,  ETC. 

williiii;  to  rotuiii,  when  he  shall  be  ready  to  proceed  on 
his  homeward  voyage,  every  master  or  commander,  so 
olVending,  shall,  on  conviction  thereof,  be  punished  by 
fine,  not  exceeding  five  hundred  dollars,  or  by  imprison- 
ment, not  exceeding  six  months,  according  to  the  aggra- 
vation of  the  offence." 

To  constitute  the  offence  here  described,  the  forcing 
on  shore  must  be  done  both  "maliciously"  and  without 
"justifiable  cause."  "  Maliciously,"  in  the  sense  of  the 
statute,  means  not  merely  a  wicked,  malignant  and  re- 
vengeful act,  such  as  in  cases  of  murder  constitutes 
malice  ;  but  if  the  act  be  wantonly  done,  that  is,  with  a 
wilful  disregard  of  right  or  duty,  it  is,  in  the  sense  of  the 
statute,  malicious.  It  must  be  a  wilful  act,  done  contrary 
to  a  man's  own  convictions  of  duty.^  What  would  be  a 
"justifiable  cause,"  under  the  Act,  is  not,  it  seems,  every 
cause  which  would  justify  a  discharge  by  the  general 
principles  of  the  maritime  law.  The  right  to  discharge 
a  seaman,  under  this  Act,  has  been  considered  by  Story 
J.  to  result  only  from  what  may  be  deemed  a  moral  ne- 
cessity, analogous  to  the  cases  put  in  the  statute.  The 
right  arises  only  under  extraordinary  emergencies  and  in 
extreme  cases,  where  otherwise  the  safety  of  the  officers 
or  crew,  or  the  due  performance  of  the  voyage,  or  the 
regular  enforcement  of  the  ship's  discipline,  would  be 
put  in  jeopardy.^ 

The  measure  of  damages  recoverable  by  a  seaman,  in 
case  of  a  wrongful  discharge,  will  be  considered  in  a  fu- 
ture chapter.^ 

'   United  States  v.  Ruggles,  5  Mason's  R.  192.     United  States  v.  Coffin, 
1  Sumner's  R.  394. 

^  United  Slates  v.  Coffin,  ut  supra. 
"  Infra,  part  4,  ch.  2. 


PART    THIRD. 


OF   THE   MASTER'S   RELATION   TO   THE 
VESSEL,  CARGO   AND   FREIGHT. 


CHAPTER  I. 

OF    THE    master's    RELATION     TO    THE    VESSEL    AND    ITS 

OWNERS. 

The  Master  of  a  merchant  vessel  is  that  officer,  to  whom 
is  entrusted  the  entire  command  of  the  ship,  and  between 
whom  and  the  owner  or  owners,  by  the  fact  of  his  ap- 
pointment and  by  operation  of  law  there  arise  certain 
peculiar  relations,  imposing  upon  each  mutual  obligations 
towards  the  other,  and  towards  third  persons.  The  mas- 
ter's appointment  may  take  place  in  several  ways.  If 
there  be  but  one  owner  of  the  vessel,  he  alone  of  course 
appoints  the  master.  If  there  are  several  owners,  the 
control  of  such  a  vessel  is  vested  by  law  in  the  majority 
in  interest,  and  such  majority  have  the  right  to  appoint 
the  master.  The  master  himself,  too,  has  power  to  ap- 
point a  substitute  in  a  foreign  port,  if  dangerously  ill,  or 
if  he  is  obliged  from  other  controlling  reasons  to  leave 
the  vessel ;  for  altlionij;h  it  is  a  general  rule  that  agencies 
of  this  kind  cannot  be  delegated,  yet  the  maritime  law 
has  established  an  exception  in  favor  of  commerce,  in 
this  particular  case.^     So,  too,  the  consignees  of  vessel 

'   1  Bell's  Comiii.  p.  413.     Polliicr,  Louagcs  Mar.  n.  49.      The  Alexander, 
1  Dods.  Ailm.  R.  278. 

21 


IG'2  MASTF.U  -  WHKN  HE  MAY  BE  DISPOSSESSED. 

or  cargo,  in  a  Ion  ii;ii  port,  acting  in  good  faith,  have 
power  to  aj)point  a  substituto  for  the  master  who  dies 
and  devolv(>s  the  wliole  management  upon  them.'  The 
relations  of  sucli  new  master  to  the  owners  and  the  crew, 
when  riglitfully  appointed,  arc  the  same  as  those  of  his 
predecessor.-  Wlien  appointed,  by  whom  and  under 
what  circumstances  the  master  may  be  removed,  is  an 
interesting  question,  which  first  meets  our  attention  in 
considering  the  relations  of  the  parlies. 

Tlie  possession  of  a  vessel  by  the  master  is,  in  a  gen- 
eral sense,  that  of  a  mere  mandatary,  whose  authority, 
upon  the  general  principles  of  the  law  of  agencies,  may 
be  revoked  at  any  time.  But  it  would  seem  that  at 
least  in  some  cases,  a  new  clement  of  contract  mingles 
with  the  relation  of  the  parties,  and  renders  it  necessary 
to  inquire  if  tiiis  general  power  of  revocation  be  not  sub- 
ject to  important  restrictions,  as  well  upon  principle,  as 
upon  the  direct  authority  of  the  maritime  law. 

The  Laws  of  the  Hanseatic  League  contain  the  ear- 
liest positive  direction,  upon  this  point,  aside  from  the 
general  law  of  agencies,  with  which  I  have  met.  They 
provide,  that  "  if  a  master  conducts  himself  towards  his 
co-owners,  in  a  manner  so  inconvenient  that  they  deem 
it  proper  no  longer  to  retain  him,  they  may  dismiss  him, 
provided  they  purchase  from  him  his  share  in  the  vessel, 
if  he   has  any,  according  to  the  valuation  that  shall  be 


'  The  Tartar,  1  Hag.  Adm.  R.  1.  The  Zodiac,  Ibid,  1.  The  Alex- 
ander, 1  Dods.  Adm.  R.  278.  The  Kennersley  Castle,  3  Hag.  Adm.  R.  1. 
The  Rubicon,  3  Ibid.  9. 

*  Ibid.  See  also  Orne  v.  Towtisend,  4  Mason's  R.  541.  And  ante, 
Part  I,  ch.  2. 


MASTER  — WHEN  HE  MAY  BE  DISPOSSESSED.  163 

made  of  it  by  experts  of  known  impartiality."  '     This 
law  evidently  contemplates  the  case  of  the  master  being 
a  part-owner.     It  is  wholly  silent  upon  the  question  of 
damages,  or  compensation  to  be  made  to  the  master,  for 
the   loss  of   the  employment  as  master;  and  from  the 
fact  that  it  only  imposes  upon  the  other  owners  the  obli- 
gation of  purchasing  his  share,  if  he  has  any,  it  may  be 
inferred  as  the  sense  of  the  legislators  promulgating  the 
law,  and  of  the  maritime  communities  who  were  govern- 
ed by  it,  that  in  ordinary  cases,  where  the  master  is  not 
also  a  part-owner,  the   owners  may  dismiss  him  at  any 
time,  for  conduct  repugnant  to  their  interests  or  orders. 
This,  however,  leaves  untouched  the  case  of  a  dismission 
of  a  mere  master,  without  good  cause,  as  from  caprice, 
or  to  retain  one  whose  services  may  be  had  for  smaller 
compensation.     But    following    the    historical  course  of 
this   same   provision,   we   find    it    incorporated  into   the 
Marine  Ordinance  of  Louis  XIV.  where  it  stands  in 
these  words.     "  All   proprietors  of  vessels   may  dismiss 
the  master,  reimbursing  him,  if  he  requires  it,  for  the 
part  he  has  in  the  vessel,  on  the  report  of  skilful  per- 
sons."^    The  commentary  of  M.  Valin  upon  this  article 
is  hiirhlv  instructive  and  acute.     His  conclusion  upon  it 
is,  that  the  law  was  intended  to  secure  to  the  other  own- 
ers the  ri^ht  of  dismissing  a  master  who  is  also  a  part- 
owner,  when  acting  contrary  to  their  interests  ;  in  other 
words,  to   make   effectual    llie  power  of  the  majority  in 

'   Droit  ^fnr.  dc  la  Lignr  Ans.  [Reds  de  1614),  lit.  2,  art.  1 ;  Tardcssus, 

tome  ii,  p.  532. 

'  "  Pourrnnt  loulr.i  proprirtaircs  tie  navirrs,  confrMier  Ic  maili-c,  en  le  rem' 
botirsant,  s'il  le  rcquicrt,  de  la  part  qu'il  aura  an  vaissrau  an  dire  de  gens  4 
ce  connotssana."     L'Ord.  dc  la  Marine,  liv.  2,  lit.  8,  art.  4. 


161  MASTKR  — WHKN  HE  MAY  BE  DISPOSSESSED. 

interest  to  dispossess  a  iiiinority,  by  enforcing;  this  vight 
even  against  a  master  in  possession,  wiietlier  tlicre  is 
sufticient  cause  for  depriving  him  of  his  command,  as 
master,  or  not.  But  he  asks,  significantly,  whether  it 
follows  that  no  damages  are  due  to  the  master,  as  such, 
if  li(^  is  dismissed  without  a  valid  reason,  because  the 
article  is  silent  ujion  this  point?  His  own  opinion  is  that 
the  master,  under  such  circumstances,  is  clearly  entitled 
to  damages;  and  he  cites  in  sujiport  of  his  own  reason- 
ing a  sentence  of  the  Admiralty  of  Marseilles,  in  1752, 
placing  the  master,  who  is  discharged  without  a  valid 
cause,  upon  the  same  rule  of  damages  as  a  seaman.^ 
The  Code  de  Commetxe  promulgates  the  same  general 
provision  in  two  separate  articles.  The  first  declares, 
with  extreme  conciseness,  that  "  The  owner  may  dismiss 
the  captain  ;  there  is  no  room  for  indemnity,  if  there  is 
no  agreement  in  writing;"^  which  I  understand  to 
mean,  if  the  master  has  not  executed  articles  for  a  defi- 
nite voyage,  but  is  merely  under  a  general  retainer. 
The  next  article  reenacts  the  provisions,  "  That  if  the 
master  dismissed  is  a  part-owner  of  the  ship,  he  may 
renounce  his  interest  and  require  the  reimbursement  of 
the  capital  which  represents  it."^ 

From  these  evidences  of  the  maritime  law,  it  would 
seem  that  the  owners  have  a  right  to  remove  the  master, 
who  is  a  part-owner,  at  their  own  pleasure,  paying  him 


'  Valin,  Cqmm.  tome  i,  p.  571,  et  seq. 

"  "Z/C  propriilaire  pent  congidier  le  capitaine.  11  n'y  a  pas  lieu  a  indem- 
nity, s'll  n'y  a  convention  par  hrit."     Code  de  Commerce,  art.  218. 

'  Art.  219.  In  the  Scottish  Admiralty  it  seems  to  be  held  that  the  own- 
ers may  dismiss  the  master  at  any  time,  without  cause  assigned.  1  Bell's 
Cora.  506,  508. 


MASTER  — WHEN  HE  MAY  BE  DISPOSSESSED.  165 

for  his  share  of  the  vessel ;  but  if  he  is  removed  without 
good  cause,  after  an  engagement  for  a  particular  voyage, 
I  think  they  are  bound  to  pay  him  damages  for  the  loss 
of  the  employment  as  master,  and  for  any  losses  or  lia- 
bilities he  may  have  incurred  by  reason  of  his  appoint- 
ment. I  infer  this,  because  the  law  originally  cited 
seems  made  only  to  provide  for  the  indemnity  of  the 
master  in  respect  to  his  interest  in  the  vessel ;  because 
it  was  so  incorporated  into  the  French  Ordinance  ;  and 
because  the  opinion  of  Valin,  in  giving  it  this  construc- 
tion, clearly  supplies  the  principles  upon  which  the  ques- 
tion, omitted  by  the  law,  ought  to  be  decided,  and  is 
clearly  in  favor  of  damages.  In  fact,  if  it  were  other- 
wise, the  result  would  be  that  an  owner  may  break  his 
contract  with  a  master,  and  thereby  throw  undeserved 
reproach  upon  his  professional  character,  without  com- 
pensation, for  no  sufficient  reason  ;  which  he  cannot  do 
to  a  common  sailor.  So  too,  the  master  might  be  left 
under  personal  responsibility  upon  bills  of  lading,  wiiich 
he  may  have  signed,  and  for  the  wages  of  seamen  whom 
he  may  have  engaged.^ 

But  this  question  is  still  an  open  one,  and  the  opinions 
of  jurists  are  divided  upon  it.~ 

liut  upon  a  general  retainer  for  no  particular  voyage, 
as  where  the  master  is  in  possession  of  a  ship  which  is 

'  See  also  Montgomery  v.  Wharton,  2  Pcters's  Adm.  R.  397.  S.  C. 
1  Dall.  49  ;  Bee's  R.  38S.  The  New  Draper,  4  Robinson's  Adm.  R.  287, 
The  case  of  Mont frojnery  v.  Wharton  was  a  libel  in  the  Admiralty,  by  a 
master,  to  compel  a  specific  performance  of  the  contract,  liy  the  owners. 
The  Court  hrld  that  the  Admiralty  had  no  jurisdiction  to  compel  such  a 
specific  prrformanrc ;  but  intimated  that  the  remedy  was  in  damages,  to 
which  the  common  law  was  most  competent. 

*  See  3  Kent's  Com.  p.  161. 


1 GG  MASTRR  —  WHEN  HE  MAY  BE  DISPOSSESSED. 

(Miiployod  in  ^oing  fiom  port  to  port,  wherever  freights 
can  be  ])rocured,  the  owners  may  at  any  time  re- 
move the  master,  for  any  reason  that  seems  good  to 
them  ;  because  the  nature  of  his  employment  is  then  a 
mere  agency,  to  be  revoked  at  any  time  by  the  princi- 
pal.^ This,  however,  is  to  be  understood  with  the  hmi- 
tation,  that  the  owners  are  to  indemnify  him  against 
liabilities  incurred  in  the  course  of  his  connection  with 
the  ship.-  The  dispossession  of  a  master  may  be  effect- 
ed by  Judicial  jnoceedings  in  the  Admiralty,  promoted  by 
the  owners  who  have  a  majority  in  interest.  In  the 
course  of  such  a  proceeding.  Sir  William  Scott  observed, 
"  all  that  the  Court  requires,  in  cases  where  the  master 
is  not  an  owner,  is,  that  the  majority  of  the  proprietors 
should  declare  their  disinclination  to  continue  him  in  pos- 
session.^ In  the  case  of  a  master  cmd  part-owner.,  some- 
thing more  is  required,  before  the  Court  will  proceed  to 
dispossess  a  person  who  is  also  a  proprietor  in  the  vessel, 
and  whose  possession  the  common  law  is  upon  general 
principles  inclined  to  maintain.  Some  special  reason  is 
commonly  stated,  to  induce  the  Court  to  interpose."  * 

'  Montgomery  v.  Wharton,  1  Peters's  Adm.  R.  397.  The  New  Draper, 
4  Rob.  Adm.  R.  287;  as  to  the  revocation  of  such  an  agency,  see  Story  on 
Agency,  ch.  18,  sec.  463. 

'  Story  on  Agency,  ch.  18,  sec.  466. 

^  This  was  probably  spoken  of  cases  where  the  master  was  in  possession 
of  a  general  trading  ship;  not  where  he  was  engaged  by  contract  for  a 
specific  voyage.  The  learned  Judge  was,  however,  announcing  the  prac- 
tice of  the  Court  upon  the  matter  of  possession,  and  not  upon  the  question 
of  damages. 

*  The  Neiv  Draper,  4  Rob.  Adm.  R.  287.  See  also  The  Johan  and 
Siegmund,  Edward's  Adm.  R.  242.  This  jurisdiction,  however,  is  not  ex- 
ercised by  the  British  Court  of  Admiralty  between  foreigners,  without  the 
consent  of  the  parties,  or  the  intervention  of  the  minister  of  the  foreign 


MASTER  — GENERAL  AGENT  FOR  EMPLOYMENT  OF  THE  SHIP.     167 

It  follows,  as  the  correlative  of  what  has  been  said, 
that  the  master  who  has  contracted  to  go  on  a  particular 
voyage,  can  no  more  withdraw  from  that  contract,  with- 
out incurring  a  liability  to  damages,  than  the  owner. 
Nor  can  he  quit  the  vessel  in  a  foreign  port,  when  she  is 
emplo^  ed  as  a  general  trading  vessel ;  for  it  is  always 
his  duty  to  bring  the  vessel  home,  if  possible,  and  even 
in  case  of  capture  by  a  belligerent,  it  is  his  duty  to  re- 
main until  the  result  of  the  proceedings  and  the  fate  of 
the  ship  are  made  known. ^  It  is  not  to  be  said,  indeed, 
that  a  master  who  finds  himself  abroad,  in  a  ship  that  is 
ordered  by  the  owners  from  one  quarter  of  the  world  to 
another,  in  a  series  of  voyages  which  he  made  no  specific 
contract  to  perform,  can  thus  be  kept  in  perpetual  ban- 
ishment from  home,  if  they  do  not  permit  the  ship  to  re- 
turn. But  even  in  such  a  case,  he  would  not  be  at 
liberty  to  quit  the  vessel  without  giving  them  such  notice 
as  would  enable  them  to  appoint  a  substitute.^  If,  after 
such  notice,  they  neglected  to  make  an  appointment,  he 
mifiht  make  it  himself. 

The  master  being  rightfully  appointed,  and  lawfully  in 
possession  of  the  ship,  we  are  now  to  inquire  what  are 
his  jKiwcrs  and  duties.  The  first  of  these  respects  the 
cmplovinent  of  the  vessel. 

I.  The  Master  is  the  agent  of  the  owners,  to  manage 

state  devolving  tlic  jiirisdiction  of  his  own  country  on  the  Court.  But  a 
sentence  of  liie  Admiralty  Court  of  the  foreign  country,  where  the  vessel 
belongs,  will  be  considered  to  arm  the  Court  with  suHicient  authority,  and 
will  be  supported  and  possession  decreed.  The  See  Rctiter,  1  Dodson's 
Adm.  R.  S2  ;  and  Tin:  Johan  and  Sifn^muntl,  ante. 

'  VVtltard  tl  nx  V.  Durr,  3  Mason's  R.  255.  limwn  v.  f.ull,  2  Sumner's 
R,  443. 

•  Story  on  Agency,  ch.  IB,  sec.  478. 


1G8  MASTER  — WHEN  HE  MAY  LET  BY  CHARTER. 

and  cnij)loy  the  vessel  ibr  their  interest.  Whenever  he 
reeeives  their  orders,  he  is  bound  to  obey  them  as  the 
limitations  of  his  general  authority  ;  and  when  tliey  make 
a  contract  rcs})ccting  the  employment  of  the  ship,  he  can- 
not make  another  to  annul  or  supersede  it.^  But  in  the 
absence  of  s])ecific  orders,  tlie  nature  of  his  agency  invests 
him  nith  certain  ])owers,  whicli  the  law  has  accurately 
defined  ;  and  being  once  master,  he  will  be  deemed,  as 
respects  third  persons,  to  continue  in  that  character,  until 
displaced  by  some  overt  act  or  declaration  of  the  owner.^ 
1.  He  may  under  some  circumstances  let  the  ship  by 
charter-party.  The  first  requisite  to  clothe  him  with  this 
authority  is  that  it  shall  be  the  usual  employment  of  the 
ship  to  be  so  let.  The  master  cannot  of  himself  divert 
the  ship  from  its  usual  employment,  so  as  to  bind  the 
owners.  He  cannot  let  a  ship  by  charter-party  which  has 
been  employed  solely  in  carrying  the  goods  of  the  owner, 
or  in  carrying  passengers ;  nor  can  he  take  her  out  of  the 
trade  in  which  she  has  been  employed,  as  in  the  coasting 
trade,  or  fisheries,  or  in  the  navigation  of  rivers,  and  let 
her  by  charter-party  for  another  trade,  or  iji  another  kind 
of  navigation ;  nor  can  he  let  her  by  charter-party  for  a 
particular  business,  when  she  has  been  employed  ordinarily 
in  taking  freights  as  a  general  sliip.^  In  the  second  ])lace 
it  is  requisite  to  the  validity  of  a  charter-party,  made  by 

'  Burgon  V.  Sharpe  2  Canib.  N.  P.  R.  529.  Walter  v.  Brewer  11  Mass. 
R.  99.  Ward  v.  Green,  6  Cowen's  R.  173.  Peters  v.  Balleslicr,  3  Pick. 
R.  495. 

"   The  Schooner  Tribune,  3  Sumner's  R.  144. 

■''  1  Boll's  Comra.  sec.  434.  Pothier,  Char te-Par tie,  n.  48.  1  Livermore 
on  Agency,  p.  155,  156.  Abbot  on  Shipping,  part  2,  ch.  22,  sec.  7 — 10. 
Boucher  v.  Lawson,  Rep.  temp.  Hardw.  S5,  194.  King  v.  Lennox^  19  Johns. 
R.  235. 


MASTER  MAY  RECEIVE  GOODS  ON  FREIGHT.  169 

the  master,  as  against  the  owner,  that  it  should  be  made 
in  a  foreign  i)ort ;  or,  if  made  in  the  home  port,  that  it 
should  be  with  the  owner's  knowledge.  So  far  as  the 
owner  is  concerned,  the  master  enters  into  a  contract  of  af- 
freijihtmcnt  only  as  his  agent  —  by  procuration ;  and  as  such 
a  power  of  the  agent,  to  make  a  contract  of  this  important 
description  is  ordinarily  suspended  by  the  presence  of  the 
principal,  it  follows  that  the  assent  of  the  principal  must 
appear,  when  the  contract  is  made  by  the  agent  under 
circumstances  in  Avhich  the  principal  ^^ill  ordinarily  be 
deemed  to  have  resumed  the  superintendence  of  his  own 
affairs.  This  assent  will  be  presumed,  if  it  appeal's  that 
the  owner  had  knowledge,  and  did  not  dissent.^  If  these 
requisites  concur,  the  master  has  power  to  let  the  ship  by 
charter- party,  and  by  such  contract  to  bind  the  OAvners. 

2.  The  master  may  employ  the  ship  as  a  general  ship, 
and  receive  goods  on  board  to  be  carried  for  freight,  and 
sisn  IhIIs  of  lading;  for  the  same,  which  will  bind  the 
owners.  The  ship  is  also  bound,  in  specie,  to  the  per- 
formance of  the  contract.  A  merchant  who  ships  mer- 
chandise in  a  vessel  on  freight,  has  a  lien  on  the  vessel  for 
his  goods,  for  any  damage  they  may  sustain  from  the  fault 
or  neglect  of  tlu^  master,  or  the  insufficiency  of  the  vessel. 
He  may  enforce  his  lien,  by  process  in  rem,  in  the  Ad- 
miralty.     In  siicii  a  case,  the  vessel  is,  by  the  marine  law, 

'  Valin  Comm.  tome  i,  p.  618,030.  rolliier,  Louairrs  Mar.  n.  IS.  Ab- 
bot on  Shipping,  part  2,  ch.  2.  sec.  5.  1  Bell's  Comm.  p.  412,  413.  Hur- 
ry V.  The  Assignci's  of  Iliirnj,  2  Wash.  R.  145.  The  Schooner  Tribune, 
3  Sumner's  R.  144.  In  ihis  last  case,  the  court  tlioiight  that  the  fact  of  the 
master'.s  having  had  autiiority  to  make  charter-parties  in  the  liome  port,  for 
former  voyages,  furnished  eviilcnre  of  a  superadded  agency,  (such  as  the 
doctrine  slated  in  the  text  reipiires,  beyond  the  ordinary  pnv.ers  of  the 
master)  for  the  particular  occasion  in  controversy. 

22 


170    MASTER  MAY  RECEIVE  GOODS  ON  FREIGHT  — LIMITATIONS. 

liypotliecatod  to  the  moicliant  for  his  damages,  from  the 
time  that  tlie  misfortune  ha|)})eiis,  and  his  chiim  against  it 
is  preferred  to  the  right  of  the  general  creditors  of  the 
owners.  The  right  of  })refereiico  may  be  lost  by  unrea- 
sonable delay.  But  his  lien  is  not  defeated  by  a  bona 
fide  sale,  before  he  has  had  an  opportunity  for  enforcing 
it,  and  still  less  when  the  purchaser  has  knowledge 
of  tiie  claim. ^  Here  also,  as  in  the  case  of  a  letting 
of  the  entire  ship  by  charter-party,  it  is  necessary  tiiat  the 
usual  employment  of  the  ship  should  be  that  of  a  general 
freighting  ship.-  If  the  owner  freights  the  ship  himself, 
and  the  master  takes  on  board  goods  the  freight  of 
which  he  receives  himself  as  part  of  his  privilege,  the  owner 
is  not  bound  to  the  safe  delivery  of  those  goods.^^  So  too, 
if  the  owner  goes  out  in  his  own  ship  to  freight  her  for 
himself,  and  the  master  takes  other  goods  on  board,  the 
owner  is  not  bound,  unless  at  the  time  of  sailing  he  knew 
the  goods  to  be  on  board,  and  that  they  were  taken  on 
freight.'*  But  in  such  case,  the  owner  must  shew,  in  order 
to  relieve  himself  from  the  liability,  that  he  was  exclusively 
attending  to  the  shipment  of  the  cargo,  and  he  must  show 
the  same  thing  though  he  was  on  board  as  supercargo.^ 
But  if  the  vessel  is  employed  as  a  general  freighting 
ship,  the  master  may  take  on  board  goods  to  be  carried 
for  freight,  and  the  lawfulness  or  unlawfulness  of  export- 

'   The  lichccca,  Ware's  R.  18S.     The  Recsidc,  2  Sumner's  R.  567. 

*  Abbot  on  Shipping,  part  2,  eh.  2,  sec.  4,  p.  93.  3  Kent's  Comm.  Lee.  46. 
Boucher  v.  Laioson,  Rep.  temp.  Hardw.  p.  85,  194.  Boson  v.  Sanford,  3 
Mod.  R.  321.  Gen.  Int.  Ins.  Co.  v.  Rugglcs,  12  Wheat.  408.  Ellis  v.  Tur- 
ner, 8  Term  R.  531. 

'  King  V.  Lennox,  19  Johns.  235.     Reynolds  v.  Toppan,  15  Mass.  370. 

*  Walter  v.  Brewer,  11  Mass.  R.  99. 

*  Ward  V.  Green,  6  Cowen's  R.  173. 


MASTER  BINDS  THE  O^VNER  TO  THE  AFFREIGHTMENT.        171 

iiig  such  goods  from  the  country  whence  they  are  shipped, 
or  the  fact  that  the  master  receives  the  freight  as  his  own 
perquisite,  cannot  vary  the  owner's  responsibihty.^  So 
too,  the  owner  is  haWe,  if  the  ship  be  a  general  one,  if  the 
master  adds  to  the  contract  for  safe  carriage  some  other 
condition,  as  to  sail  with  convoy,  though  without  the 
owner's  knowledge,  or  authority  ;  for  having  authority  to 
make  the  contract  to  carry  the  goods,  the  owners  are 
answerable  to  strangers  for  his  exceeding  his  authority,  and 
must  seek  their  remedy  against  him.^  The  usage  of  trade 
may  sometimes  invest  the  master  with  a  further  extent  of 
authority.  Thus,  if  in  the  coasting  trade  it  is  the  usage 
for  tiie  master  to  act  as  consignee,  and  bring  back  the 
proceeds  of  the  goods  shipped,  though  the  compensation 
is  all  paid  in  the  shape  of  freight,  the  owners  are  liable 
for  a  safe  return  of  the  money  by  the  master.^ 

There  does  not  seem  to  be  the  same  broad  distinction, 
as  to  the  master's  authority,  between  a  contract  for  the 
carriage  of  goods  made  at  the  place  of  the  owner's  resi- 
dence, and  one  made  abroad,  as  in  the  case  of  making  a 
contract  by  charter-party.  Abroad,  the  master  is  the 
agent  of  the  owner,  to  receive  goods  in  a  general  freight- 
ing shij) ;  and  at  home,  the  receiving  of  goods  on  board 

'  Bouchrrv.  iMwsnn,  Rep  tcrnp.  Hardw.  p.  85.  Tlie  fact  that  tlie  master 
receives  llie  freight  as  his  own  punjuisite,  was  much  considered  in  the  case 
of  Allen  V.  Sewall,  2  Wend.  R.  327,  afterwards  carried  to  the  Court  of  Errors 
in  6  Wend.  R.  335.  Tlie  general  principle  stated  in  the  text  was  affirmed. 
It  was  also  held  that  the  owner's  directions  to  the  master  not  to  carry  the 
particular  kind  of  i)arcels,  (as  money)  did  not  excuse  the  owner,  unless  notice 
of  such  instructions  were  hrougiit  home  to  the  shipper.  See  also  2  Kent's 
Comm.  p.  609. 

'  Rini/mxt  V.  Ditchcll,  Mich.  Ter.  40  Geo.  3,  cited  Abbot  on  Shipping, 
p.  98,  Edit.  1829. 

^  E/nery  v.  Ikrsci/,i  Grcenl.  R.  407.     Kcitip  v.  Couj;htr>i,  11  Jolms.  1U7. 


172  MASTER'S  AUTHORITY  TO  ORDER  REPAIRS,  ETC. 

and  sij^ning  bills  of  lading  lor  tlicm,  arc  so  uniformly  en- 
trusted to  the  master  of  a  general  trading  ship,  that  an 
actual  interference  or  prohibition  of  the  owner  would 
seem  to  be  necessary  to  affect  third  persons.' 

3.  The  hiring  as  well  as  the  discharge  of  the  other 
officers  and  seamen  are  among  tiie  incidental  powers  of 
the  master,  ordinarily  entrusted  to  him,  and  always  to  be 
presumed,  unless  a  prohibition  or  interference  of  the 
owner  appears,  to  affect  third  ])ersons  with  notice  that  the 
usual  powers  arc  withheld.- 

4.  In  respect  to  repairs  and  the  outfit  of  the  vessel. 
In  the  home  port,  the  master's  presumed  power  as 

agent  for  the  owners  will  bind  them  for  all  proj)er  con- 
tracts for  fitting  out,  victualling  and  repairing  the  ship, 
unless  it  shall  be  shown  that  the  owners  themselves,  or 
a  ship's-husband,  managed  the  vessel,  and  that  the  party 
contracting  with  the  master  was  aware  of  this.^  Where 
an  exclusive  credit  is  given  to  the  master,  the  owner  is 
not  liable  ;^  but  though  the  master  is  lessee  of  the  vessel 
for  a  term  of  time,  under  covenants  that  he  shall  have 
the  sole  management  and  repair  her  at  his  own  cost,  j'et 
if  the  creditor  has  no  notice  of  this,  he  will  have  a  right 
to  look  to  the  owncr.^  So  too,  it  was  held  in  England 
that  the  owners  are  bound  for  necessaries,  though  the 

'  1  Bell's  Com.  sec.  434.  Abbot  on  Shipping,  p.  93.  1  Liverraore  oa 
Agency,  p.  157,  158. 

*  Ante,  Part  I,  eh.  2,  p.  15.     Part  II,  eh.  5.     Story  on  Agency,  p.  110. 

^  1  Bell's  Com.  413.  Abbot  on  Shipping,  p.  101.  Marquandv.  Webb, 
16  Johns.  R.  89.  Schemerhorn  v.  Loines,  7  Johns.  R.  311.  Muldon  v. 
Whitlock,  1  Cowen's  R.  290.  Ex  parte  Bland,  2  Rose,  91.  Farmer  v.  Da- 
vis, 1  Ter.  R.  108.     Gumham  v.  Bennel,  2  Stra.  81 G. 

«  Thorn  v.  Hicks,  7  Cowen's  R.  097. 

*  Rich  V.  Coe,  Cowp.  636. 


MASTER'S  AUTHORITY  TO  ORDER  REPAIRS,  ETC.  173 

master  is  appointed  by  government,  the  vessel  being  a 
mail  packet ;  because  the  owners  receive  the  benefit  of 
the  repairs  and  the  earnings  of  the  vessel.^  In  short,  the 
liability  of  the  owners  rests  upon  two  grounds ;  first,  the 
authority  to  act  for  them,  of  which  his  character  and  situ- 
ation as  master  furnish  presumptive  evidence  ;  secondly, 
the  fact  that  the  owners  receive  the  benefit  of  the  con- 
tract, and  the  consequent  })resumption  that  arises  thereon 
that  it  was  made  at  their  instance  and  request.^ 

It  has  been  recently  held  in  England,  that  the  master 
has  authority  to  pledge  the  credit  of  his  owner,  resident 
in  England,  for  money  advanced  to  the  master  in  an  Eng- 
lish port,  where  the  owner  has  no  agent,  if  such  advance 
of  money  was  necessary  for  the  prosecution  of  the  voyage ; 
and  whether  it  was  so  or  not,  is  a  question  for  the  jury.^ 

The  mcister  is  the  presumed  and  accredited  agent  of 
the  owners  in  fitting  out,  victualling  and  repairing  the 
ship  abroad ;  and  for  his  engagements  in  these  respects, 
or  even  for  money  borrowed  for  the  purpose  of  furnish- 
ing necessaries  for  the  ship,  the  owners  will  be  bound, 
provided  the  loan  appears  to  be  fairly  supported  by  evi- 
dence of  existing  necessities;^  and  he  may  draw  bills  of 

'   Slohes  V.  Came,  2  Camp.  N.  P.  R.  339. 

*  Jamcx  V.  liiilnj,  11  Mass.  R.  34.  But  the  mere  fact  that  a  party  re- 
ceives the  benefit,  is  not  alone  sufficient  to  charge  him,  as  the  owner,  unless 
some  ground  of  contract  appears.  Buxton  v.  Snec,  1  Ves.  154.  This  suh- 
jecl  of  the  liahility  of  the  owner,  as  such,  has  been  a  good  deal  discussed, 
and  it  seems  that  the  ultimate  question  in  every  case  is,  to  whom  was  the 
credit  given  ?  See  Dame  v.  Jlndlock,  4  Pick.  R.  458.  Baher  v.  Buckle,  7  J. 
B.  Moore,  349,  and  infra,  Part  V,  ch.  1,  upon  the  point  of  liability  for  sea- 
men's wages. 

'  Arthur  \.  Barton,  G  M.  and  W.  138.  See  also  Robinson  v.  Lyall,  7 
Price's  R.  592. 

♦  1  Bell's  Cora.  413.  Jfu.iscyv.  Allen,  G  Mass.  R.  1G3.  Jamrs  v.  Bixbij, 
11  Mass.  R.  34.     Waimvright  v.  Crawford,  i  Dallas's  R.  225.     Millwardy. 


174  WHAT  ARE  NFX'ESSARIES. 

exchange  on  liis  owners  to  pay  such  a  loan,  which  they 
are  bound  to  accept.'  The  term  necessaries  is  not  re- 
stricted in  its  meaning  to  such  things  as  are  absolutely 
necessary,  but  extends  to  whatever  a  prudent  owner 
would  order  as  reasonably  fit  and  proper  for  the  ship,  or  for 
the  voyage,  under  the  circumstances."  But  "  the  money 
supplied,"  says  Lord  Ellenl)orough,  "  must  not  be  under- 
stood of  an  indefinite  supply  of  cash,  which  the  master 
may  dissipate,  but  only  such  as  is  warranted  by  the  exi- 
gency of  the  case,  as  for  the  payment  of  duties  and  other 
necessary  purposes."^  It  has  been  held  (at  nisiprisus)  to 
be  essential  that  a  specific  sum  should  be  advanced  for  a 
specific  purpose  of  necessary  repairs,  and  that  it  should  have 
been  in  fact  so  applied,  before  the  owner  can  be  made  liable, 
personally,  upon  his  implied  contract.  Thus  in  an  action 
against  the  owner  of  a  ship  for  money  supplied  to  the 
captain  at  a  foreign  port,  where  it  appeared  that  he  had 
taken  up  seventeen  hundred  pounds  on  his  owner's  ac- 
count, a  part  of  which  only  had  been  applied  to  the  uses 
of  the  ship,  and  then  the  lender  had  carried  the  residue 
to  the  private  account  of  the  captain ;  Abbot  L.  C.  J. 
held  that  there  must  be  a  distinct  advance  of  a  specific 
sum,  on  account  of  the  ship,  which  must  be  specifically 
applied  to  the  use  of  the  ship,  and  that  it  was  incumbent 
on  the  plaintiff  to  show  the  necessity  for  borrowing  the 
money,  and  to  prove  the  actual  application  of  it.''    So  too, 

Hallet,  2  Caine's  R.  77.    Webster  v.  SeeJiamp,  4  Barn,  and  Aid.  352.     Stew- 
art V.  Hall,  2  Dow's  R.  29.     Rosher  v.  Busher,  1  Starkie,  27. 
1  Millward  V.  Hdlct,  2  Caine's  R.  77. 

*  Webster  v.  SeeJcamp,  4  Barn,  and  Aid.  352. 
»  Rosher  V.  Busher,  1  Starkie's  R.  27. 

*  Palmer  et  al.  V.  Gooch,  2  Starkie's  R.  428.     See  also  Sir  Humphrey 
Jtrvish  case,  Abbot  on  Shipping,  part  2,  ch.  3,  p.  104.     But  it  is  clearly 


MASTER'S  POWER  TO  HYPOTHECATE  SHIP.  175 

the  responsibility  of  the  owners  is  to  be  restricted  to  ad- 
vances for  necessary  repairs  and  expenses,  to  prosecute 
the  voyage  originally  contemplated,  and  will  not  include 
such  extraordinary  expenditures  as  arming  the  vessel, 
unless  the  necessity  for  so  doing  was  palpable  and  press- 
ing.' 

If  the  master  cannot  obtain  the  necessary  supplies,  or 
advances  for  supplies,  upon  the  owuier's  credit,  or  his 
own,  in  the  foreign  port,  he  may  then  resort  to  a  direct 
hypothecation  of  the  ship,  by  giving  a  bottomry  bond.^ 
This  is  one  of  the  most  delicate  powers  entrusted  to  the 
masrer,  and  capable  of  dangerous  abuses ;  yet  it  has 
been  from  the  earliest  periods  of  commerce  one  of  the 
acknowledged  powers  of  the  master,  growing  out  of  the 
necessity,  invincible  in  a  moral  sense,  that  the  ship  should 
proceed.^  But  before  he  can  give  this  species  of  real 
security,  several  previous  contingencies  must  have  ex- 
pressly occurred,  which  the  law  has  placed  as  checks 
upon  the  master  for  the  protection  of  the  owner ;  for  it 
is  to  be  observed,  that  the  contract  is  one  which  the  mas- 


otherwise  on  a  bottomry  bond,  giving  a  lien  on  the  ship,  and  relieving  the 
owner  from  personal  responsibility,  when  the  bond  issued  in  the  Admiralty. 
So  much  of  the  money  as  was  needed  and  applied  to  the  uses  of  the  ship 
is  allowed  as  a  lien  on  the  vessel,  and  the  residue  is  rejected.  And  qitccrc 
whether  there  is  any  such  distinction  at  law  as  that  taken  in  Palmer  v. 
Gooch.  Is  not  the  owner  liable  for  so  much  as  is  necessary  and  was  ac- 
tually applied  to  the  necessary  uses  of  the  ship,  without  inquiry  as  to  what 
particular  sum  the  master  took  up  at  the  time? 

'   Uniti:d  Insurance  Companij  v.  Scott,  1  Johns.  R.  106. 

*  It  seems  that  the  master  has  power  to  iiypothccate  the  ship,  although 
appointed  by  the  charterers.  Breed  v.  Ship  Venus  per  Davis  J. ;  citrd  in 
Story's  notes  to  Abbot  on  Shipping,  p.  125,  Amer.  Edit.  1829. 

'  I,ois  jyOkron,  art.  1.  Valin's  Comm.  tome  i,  p.  4 11.  1  Bell's  Comm. 
p.  433  —  440. 

\ 


176  inTOTiir.CATioN  of  ship— limitations. 

tcr  inakrs  for  the  ow  iirr,  not  by  s])ecial  appointment  for 
the  purpose,  but  only  by  an  authority  conferred  upon  him 
by  hnv  to  meet  an  emerG,ent  and  unprovided  necessity. 

First,  it  must  be  out  of  the  master's  power  to  obtain  a 
personal  credit,  either  in  the  name  of  his  owners,  or  in 
his  own  name,  at  the  i)lace  where  he  proposes  to  hypoth- 
ecate the  ship.  That  the  owner's  personal  credit  should 
first  be  insufficient,  is  by  all  the  aiuhorities,  the  first  prin- 
ciple upon  which  the  validity  of  such  an  hypothecation 
rests.^  In  regard  to  the  master's  own  credit,  it  is  not 
likely  often  to  occur,  that  a  master  of  a  vessel  w  ill  have 
a  personal  credit,  where  his  owner  has  not ;  but  Lord 
Stowell,  on  several  occasions,  in  stating  the  foundation 
of  bottomry  bonds,  has  coupled  the  owner  and  master 
together,  and  defined  the  proper  occasions  on  which  they 
may  be  given,  as  being  those  where  neither  has  a  per- 
sonal credit."  Upon  general  principles,  it  would  seem 
reasonable  to  hold  (but  the  point  has  not  been  directly 
adjudged)  that  the  master  is  bound  to  use  his  own  credit, 
if  he  has  any,  because  he  is  bound  to  get  the  repairs  done 


'  The  Nelson,  1  Haggard's  Adm.  R.  169.  The  Zodiac,  1  Haggard's  Adtn. 
R.  320.  The  Rhadamanfhe,  1  Dodson's  Adm.  R.  201.  The  Augusta,  1  Dod- 
son's  Adm.  R.  283.  The  Sydney  Cove,  2  Dodson's  Adm.  R.  11.  The  Vir- 
gin, 8  Peters's  S.  C.  R.  538.  The  Aurora,  1  Wlieaton's  R.  96.  Murray  v. 
Lazarus,  1  Paine's  R.  572.  Ross  v.  Ship  Active,  2  AVashington's  R.  226. 
Tunno  v.  Ship  Mary,  Bee's  R.  120.  The  Fortitude,  3  Sumner's  R.  228. 
The  Brig  Hunter,  Ware's  R.  249. 

'^  The  Zodiac,  1  Haggard's  Adm.  R.  320.  The  Sydney  Cove,  2  Dodson's 
Adm.  R.  11.  TheHero,2  Dodson's  Adm.R.  11.  Since  this  text  was 
written,  I  have  seen  a  case  in  England,  which  sanctions  the  principle 
more  directly.  A  bottomry  bond  was  given  by  the  master  for  advances 
made  on  his  own  credit,  and  not  on  that  of  the  owner,  for  a  series  of 
voyages  undertaken  in  defiance  of  instructions,  and  it  was  held  void.  T/k. 
Reliance,  3  Hag.  Adm.  R.  66. 


HYPOTHECATION  OF  SHIP  — LIMITATIONS.  177 

at  as  little  sacrifice  to  the  owner  as  he  can ;  and  if,  by  a 
loan  obtained  upon  his  personal  responsibility,  he  can 
reheve  the  owner  from  the  payment  of  maritime  interest, 
he  ought  to  do  so ;  and  for  advances  thus  made,  he  has 
a  lien  on  the  freight,  and  perhaps  also  on  the  ship.^  But 
if  his  own  credit,  exclusively,  will  not  procure  the  neces- 
sary advances,  there  is  no  objection  against  his  uniting 
both  his  own  personal  credit  and  a  bottomry  security,  as 
inducements  to  the  lender  of  whom  he  solicits  the  loan 
or  the  supplies.  Nor  is  it  material,  that  the  advances 
are  made  to  the  master  before  the  bond  of  hypotheca- 
tion is  taken,  unl(\ss  they  were  made  trusting  to  his 
personal  resjx)iisiljility  alone,  and  without  a  view  to  a 
bottomry  bond.  Thus,  where  it  was  objected  that  the 
repairs  and  suj)plies  were  made  in  the  first  instance,  upon 
the  master's  credit,  but  it  did  not  appear  that  the  mate- 
rial-men trusted  to  his  personal  credit  exclusively,  waiv- 
ing the  lien  which  the  foreign  law  gave  them  on  the  ves- 
sel, or  the  general  responsibility  of  the  owners,  the  Su- 
})reme  Court  of  the  United  States  held,  that  they  might 
well  trust  to  the  master's  credit,  as  auxiliary  to  these 
sources,  and  that  the  fact  that  the  master  ordered  the 
supplies  and  re])airs  before  the  bottomry  bond  was  given, 


•  As  to  the  lien  on  freight,  it  is  less  doubted  now  than  formerly,  with  us. 
The  Park't,  3  Mason's  R.  255.  Drinku-attr  tt  al.  v.  Tlic  Frcii^lU,  S^c  of 
(he  Spartan,  Ware's  R.  149.  The  master's  lien  on  the  ship  for  advances 
has  been  disputed  in  England  at  common  law.  lluxsey  v.  Christie, 9  East's 
R.,  426.  Abbot  on  Shipping,  part  2,  ch.  3,  sec.  9.  The  Courts  of  Equity 
have  favored  it.  fTussnj  v.  Chrixdr,  13  Ves.  Jr.  591.  Ex  parte  Ilahcrtt,  3 
Vcs.  and  Ijeame,  135.  Some  of  the  Courts  of  Admiralty  in  this  country 
have  anirmcd  it.  Dulgin  v.  Sloop  Rainlxnv,  Bee's  Adin.  R.  110.  (Jordnrr 
v.  Ship  New  Jerxey,  Pelers's  Adn>.  R.  223.  Sec  also  The  Pnrkel,  3  Ma- 
son's R.  255.     Sec  more  fully  infra.  Part  III,  ch.  4. 

23 


178  HYrOTHlXATION  OF   Sllir  — LIMITATIONS. 

could  have  no  lrii,;il  vi'fvvi  to  defeat  that  security,  if  they 
were  so  ordered  by  the  master  upon  the  faith  and  with 
the  intention  that  a  bottomry  bond  should  be  given  to 
secure  the  payment  of  them.^  So  too,  the  master  may 
give  the  personal  security  of  the  owners  as  auxiliary  to 
that  created  by  the  bottomry  bond,  by  drawing  bills  of 
exchano;e  on  them  collateral  to  the  bond,  if  he  cannot 
obtain  the  money  upon  the  bills  alone."  It  follows,  as  a 
general  pro})ositi()ii,  from  what  has  been  said,  that  if  there 
is  any  agent  of  the  owner  at  the  place,  the  master  can- 
not hypothecate  the  shi])  ;^  and  a  fortiori  if  one  or  more 
of  the  part-owners  of  the  vessel  should  be  present,  the 
master's  power  ceases.^ 

But  the  presence  of  an  agent,  or  corres])ondent  of 
the  owner,  is  to  be  taken,  in  its  effect  on  the  master's 
authority,  with  the  same  reference  to  the  question  of 
necessity,  as  any  other  state  of  things.  An  agent  may 
be  present  and  refuse  to  act ;  a  consignee  may  have 
funds  of  the  owners,  and  refuse  to  advance  them.  In 
such  cases,  the  master  is  thrown  u])on  the  resources  which 
his  official  character  empowers  him  to  use  under  other 
circumstances  of  distress.  Thus  it  has  been  held  that  it 
is  not  sufficient  that  there  should  be  an  agent  duly  em- 
powered to  act  in  supplying  the  ship's  necessities,  but  he 
must  also  be  inclined  so  to  act  f  and  that  it  is  wholly 

»  The  Virgin,  8  Peters's  S.  C.  R.  538.  See  also  La  Ysabcl,  1  Dods. 
Adm.  R.  273,  276. 

^  The  Tartar,  1  Hag.  Adm.  R.  3.  The  Nelson,  1  Hag.  Adm.  R.  179. 
The  Jane,  1  Dods.  Adm.  R.  46G.  If  the  bills  are  honored,  they  discharge 
the  bond.     Ibid. 

'  Selden  v.  Hendrickson,  1  Brockenbrough's  R.  39G.  Boreal  v.  The 
Golden  Rose,  Bee's  R.  131. 

*  Patton  V.  The  Randolph,  Gilpin's  R.  457. 

*  The  Nelson,  1  Hag.  Adm.  3. 


HYPOTHECATION  OF   SHIP  — LIMITATIONS.  179 

immaterial  that  a  consignee  has  funds   of  the  owner,  if 
he  will  not  advance  them,  for  the  non-existence  of  funds 
and  the  inability  to  get  at  them  must  be  deemed  precisely 
equal   predicaments  of  distress/     So  too,  where  a  ship 
came  to  the  hands  of  a   foreign  merchant,  consigned  by 
the  master,  who  died  and  devolved   the  whole  manage- 
ment upon  him.  Lord  Stowell  supported  a  bottomry  bond 
taken  by  him  of  the  master  whom  he  himself  appointed, 
the  transaction  appearing  to  have  been  conducted  in  en- 
tire good  faith.^     He  held  the  same,  also,  in  the  case  of 
a  bond   taken  by  consignees  of  the  cargo,  of  a  master 
whom,  as  a  measure  of  necessity,  they  had  appointed  in 
the  place  of  the  former  master.^     Upon  another  occasion 
he  held  the  following  language  in  respect  to  bonds  given 
to  agents,  and  upon  the  principles  thus  laid  down,  decided 
the  cause  before  him.     "  It  is  not  to  be  laid  down  as  a 
universal  principle,  that  an  agent  of  the  owner  may  not, 
under  any  circumstances,  take  the  security  of  a  bottomry 
bond.     Cases  may  possibly  arise,  in  which  an  agent  may 
be  justified  in  so  doing.     It  can  be  no  part  of  his  duty  to 
advance  money  without  a  fair  expectation  of  being  reim- 
bursed, and  if  lie  finds  it  unsafe  to  extend  credit  to  his 
employers  beyond  certain  reasonable  limits,  he  may  then 
be  at  liberty  to  give  up  the  character  of  a^ent,  and,  as  any 
other  merchant,  to  lend  his  money  upon  bond,  and  secure 

»   TAe  Virgin,  8  Peters's  S.  C.  R.  538. 

*  The  Tartar,  1  Hag.  Adrn.  R.  1.     Sec  also  The  Zodiac,  Ibid.  320. 

*  The  Alexander,  1  Dods.  Adm.  R.  278.  In  a  subsequent  case,  in  Eng- 
land, wbere  tiie  owner  had  abandoned,  and  a  substituted  master  (wiietlier 
appointed  by  tlie  underwriter's  agent,  or  by  ibc  owner's  agent,  or  l)y  Ijuib, 
not  appearing,)  gave  a  bottomry  bond,  to  a  iiolder  of  collateral  security,  the 
bond  was  sustained.  The  Kennessly  Castle,  3  Hag.  Adm.  R.  1.  The  Rw 
bicon,  Ibid.  9. 


180  HYPOTHFX'ATIOIS   OF   SHIP  — LIMITATIONS. 

its  paynu'iit  with  inaiitiiuc  iiitcicst."  *  But  it  is  clear 
that  if  the  a^eiit  has  liad  funds  of  the  owners  in  his  pos- 
session, wliieh  niii;lit  have  been  applied  to  the  demand 
for  which  lie  takes  a  l)ottoinry  bond,  he  is  bound  so  to 
apply  them  ;  and  if  he  has  neglected  or  refused  so  to  do, 
it  will  vitiate  the  whole  transaction.^ 

Sccondli/.  The  advances  must  be  for  repairs  and  sup- 
plies necessary  for  effectuating  the  objects  of  the  voyage, 
or  the  safety  and  security  of  the  sliip.^  Necessities  may 
come  in  such  a  variety  of  forms,  that  it  is  impossible  to 
frame  any  general  rules  which  shall  define  what  are  ne- 
cessaries upon  all  occasions ;  rules,  however,  may  well 
define  the  occasions  upon  which  necessaries  may  be  taken 
up/     Thus  the  master  cannot  hypothecate  for  an  exist- 


'  TJie  Hero.  2  Dodson's  Adm.  R.  139. 

'^  The  Aurora,  1  Wheaton's  R.  96.  See  also  Reed  v.  Com.  Ins.  Co.  3 
Johns.  R.  352. 

'  1  Bell's  Comm.  434.  The  Aurora,  1  Wheaton's  R.  96.  The  Virgin, 
8  Pelers's  R.  538.  Hurrij  v.  Ship  John  and  Alice,  1  Wash.  R.  293.  Craw- 
ford et  al.  V.  The  William  Pcnn,  3  Ibid.  484.  The  Mart/,  1  Paine,  671. 
The  Duke  of  Bedford,  2  Hag.  Adm.  R.  294.  Putnayn  v.  The  Polly,  Bee's 
R.  157.  Tunno  v.  Ship  Mary,  Ibid.  120.  The  Fortitude,  3  Sumner's  R. 
228. 

*  The  latest  judicial  definition  in  this  country  of  the  necessity  which 
will  justify  a  master  in  giving  a  bottomry  bond,  is  a  most  elaborate  and 
learned  judgment  of  Mr.  Justice  Story's,  in  the  case  of  The  Ship  Fortitude, 
3  Sumner's  R.  228.  The  necessity  is  defined  to  be  not  merely  that  which 
includes  such  repairs  and  supplies  as  are  absolutely  or  indispensably  neces- 
sary, but  that  it  includes  all  such  as  are  reasonably  fit  and  proper  for  the 
voyage.  The  lender  on  bottomry  is  bound  to  exercise  reasonable  diligence, 
in  order  to  ascertain,  whether  such  supplies  and  repairs  are  necessary  and 
proper.  He  is  not  bound,  however,  to  show  that  there  was  a  positive  ne- 
cessity. It  is  sufiicient,  if  tiicre  is  an  apparent  necessity,  so  far  as  the 
lender  is  able  upon  due  inquiry  and  due  diligence,  to  ascertain  the  facts. 
He  will  be  protected  in  such  a  case  of  apparent  necessity  for  his  advances, 
even  though,  upon  a  fuller  examination  and  more  thorough  investigation  of 


HYPOTHECATION  OF   SHIP  — LIMITATIONS.  181 

ing  debt,  but  only  for  supplies  furnished  to  enable  him  to 
complete  the  voyage,  and  furnished  at  the  time  the  ne- 
cessity existed.^  But  it  need  not  be  the  original  voyage 
upon  which  the  ship  was  sent.  Mr.  Justice  Washington 
has  held  that  the  master's  power  to  hypothecate  the  ship 
extends  to  the  obtaining  of  supplies  necessary  for  the 
safety  of  the  vessel,  and  to  enable  him  to  perform  any 
voyage  which  he  is  authorized  by  law  to  undertake.  In 
this  case,  the  bottomry  bond  was  given  in  an  enemy's 
country,  after  a  capture  and  the  breaking  up  of  the  origi- 
nal voyage,  to  enable  the  ship  to  return  home.^  The 
Supreme  Court  of  the  United  States  have  also  held,  that 

the  facts,  at  a  subsequent  period,  it  should  be  doubtful  whether  the  supplies 
and  repairs  were  really  necessary.  Where  there  is  an  apparent  necessity 
for  repairs,  the  lender  on  bottomry  is  under  no  obligation  to  inquire,  as  to 
the  best  raode  of  making  the  repairs,  or  whether  they  are  made  in  the  most 
judicious  manner,  or  to  ascertain  the  cause  of  the  injury.  It  is  sufficient, 
if  he  acts  with  good  faith,  and  does  not  cooperate  wilfully  in  any  unneces- 
sary expenditure.  Ibid.  The  doctrine  of  this  case  is  supported  by  that  of 
Scares  v.  Rahn,  before  the  Judicial  Committee  of  the  Privy  Council  in 
England,  on  appeal  from  the  High  Court  of  Admiralty.  London  Law  Mag- 
azine, February,  1839,  vol.  4,  p.  30. 

'  Hurnj  V.  Ship  John  and  Alice,  1  Wash.  R.  293.  The  Aurora,  1  Whea- 
ton's  R.  96.  In  this  last  case  the  Supreme  Court  of  the  United  States  said, 
"  It  is  true  that  a  bona  fide  creditor,  who  advances  money  to  relieve  the 
ship  from  an  actual  arrest,  on  account  of  debts  contracted  for  supplies,  may 
stipulate  for  a  bottomry  interest,  and  the  necessity  of  the  occasion  will  jus- 
tify the  master  in  giving  it,  if  he  have  no  other  sufficient  funds  or  credit,  to 
redeem  the  ship  from  such  arrest.  But  a  mere  threat  to  arrest  the  ship  for 
a  precxistent  debt,  would  not  be  a  sufficient  necessity  to  justify  the  master 
in  giving  a  bottomry  interest,  since  it  might  be  an  idle  threat,  which  the 
creditor  might  never  enforce ;  and  until  enforced,  the  peril  would  not  act 
upon  the  ship  itself.  Nor,  because  a  debt,  sought  to  be  enforced  by  an 
arrest  of  the  ship,  might  uphold  an  hypothecation  in  favor  of  a  third  per- 
son, docs  it  follow  that  a  general  creditor  would  be  entitled  to  acquire  a 
like  interest." 

»  Crawford  el  al.  v.  The  William  Pent,,  3  Wash.  R.  484. 


182  lIYrOTllF.CATION  OF   STTir-MMITATIONS. 

if  a  bottomry  U  luiiT,  in  iVautl  of  tlic  owners,  and  hy  con- 
nivanco  with  tlic  master  for  improper  purposes,  advances 
liis  money  on  a  new  voyage,  his  bottonuy  bond  may  be 
set  aside  as  invalid  ;  but  that  there  is  no  pretence  to  say 
that  if  tlie  master  does  deviate  from  his  instructions,  with- 
out any  participation  or  cooperation  or  fraudulent  intent 
of  the  bottomry  lender,  the  latter  is  to  lose  his  security 
for  his  advances  bona  fide  made  for  the  relief  of  the 
ship's  necessities.^ 

Thirdly.  If  the  master  has  money  of  the  owner  on 
board,  he  cannot  resort  to  bottomry,  until  he  has  first 
applied  it  as  f:u-  as  it  will  go,  unless  it  would  defeat  the 
purposes  of  the  voyage.^  Whether  he  is  bound  so  to 
apply  money  of  his  own,  there  is  no  direct  authority  for 
asserting,  so  far  as  I  am  informed.  The  question  would 
seem  to  depend  upon  the  same  general  reasons  as  does 
that  of  his  obligation  to  use  his  own  personal  credit,  al- 
ready touched  upon.^  Mr.  Justice  Story  has  given  a 
strong  intimation  of  his  opinion  that  the  master  is  bound 
to  apply  his  own  funds,  upon  the  principles  above  ex- 
pressed.'' In  respect  to  money  belonging  to  shippers,  he 
holds  the  case  to  be  different ;  that  there  is  no  absolute 
rule,  but  that  the  general  princii)le  is,  that  the  master  is 
bound  to  act  with  a  reasonable  discretion.^  But  this 
question  seems  to  belong  appropriately  to  the  discussion 


'   The   Virgin,  8  Peters's  S.  C.  R.  538.     See  also  The  Tartar,  1  Hag. 
Adm.  R.  12,  13. 

*  The  Packet,  3  Mason's  R.  255. 
^  Ante,  p.  176. 

*  The  Packet,  3  Mason's  R.  255. 
»  Ibid. 


HYPOTHECATION  OF   SHIP  — LUNHTATIONS.  183 

of  the   master's  relation  to  the  cargo,  which  the  money 
of  shippers  is  deemed  to  be.^ 

Fourthly.  The  master  can  thus  hypothecate  the  ship 
only  in  a  forei2;n  port ;  or,  as  the  rule  is  sometimes  ex- 
pressed, in  a  port  where  the  owners  do  not  reside.^ 
What  ports  are  to  be  deemed  foreign  for  this  purpose  is 
a  question  of  construction.  All  ports  out  of  the  country 
of  the  owner  are  of  course  within  the  rule.  Then,  as  to 
ports  in  the  country  of  the  owner,  what  are  to  be  deem- 
ed foreign  as  to  him,  and  whether  the  whole  of  his  coun- 
try is  not  to  be  deemed  his  residence,  is  a  question  that 
has  been  mooted.  In  England,  the  rule  seems  to  be 
that  the  whole  of  England  is  to  be  considered  for  this 
purpose  as  the  residence  of  an  Englishman,  at  least  be- 
fore the  commencement  of  the  voyage.^  But  Ireland  has 
been  held  to  be  a  foreign  country,  in  the  case  of  English 
ships  hypothecated  there  in  the  course  of  the  voyage.'' 
Sir  William  Scott  afterwards  went  much  farther  in  the 
case  of  a  foreign  vessel ;  for  where  a  ship  owned  in  Ali- 
cant,  in  Spain,  on  a  voyage  to  London,  put  into  Corunna 
in  a  different  province  of  the  same  kingdom,  and  was 
there  necessitated  to  take  up  money  upon  bottomry,  and 
in  the  th(;n  distracted  state  of  the  country,  (IBll)  the 
master  could  not  have  applied  to  the  owners,  he  held 
that  the  rule  that  a  bottomry  bond,  to  be  valid,  must  be 
executed   in   a  foreign  port,  docs  not  rest  the  validity  of 

•  Infra,  ch.  2. 

*  VOrd.  de  la  Marine,  liv.  2,  tit.  1,  iirl.  17.     Code  de  Commerce,  art.  232. 
Emeriffon,  tome  ii,  p.  i2A.     Ahhot  on  Shipping,  part  2,  cli.  3,  p.  123. 

'  Abbot  on  Shipping,  ante. 

♦  Thp   Rhadarnarilhr,    1    Podson's   Adm.   R.   201.      Sec  also  Menelonr  V. 
Gibbons,  3  Tcr.  II.  K.  B.  2G7. 


184  TIVrOTHRCATION  OF   SHIP  — LIMITATIONS. 

the  bond  upon  the  mere  locality  of  the  transaction  ;  but 
upon  the  extreme  difficulty  of  connnunication  between 
the  master  and  his  owners.^ 

On  the  other  hand,  does  the  opportunity  or  facil- 
ity of  communication  with  the  owner  take  away,  in 
all  cases,  the  master's  power  to  give  a  bottomry  bond  ? 
It  is  true  that  the  rule  of  necessity  knows  no  ter- 
ritorial or  jurisdictional  limits ;  that  such  necessity  may 
arise  from  the  very  fact  of  the  difficulty  of  commu- 
nication with  the  owner,  without  reference  to  such 
limits;  and  again,  that  if  there  is  a  ready  communica- 
tion with  the  owner  open,  the  case  of  necessity  (jiioad 
hoc  does  not  exist,  so  as  to  make  the  master's  action  in- 
dispensable to  the  preservation  of  the  ship,  on  whatever 
side  of  a  territorial  line  he  may  happen  to  be.  But  has 
not  the  maritime  law,  from  an  imperative  convenience, 
fixed  some  boundary,  on  the  passing  of  which  the  mas- 
ter's power  commences  and  will  continue,  even  though 
he  should  find  himself  in  a  port  whence  there  is  a  ready 
communication  with  his  owner's  residence  ?  Emerigon 
informs  us  that  in  France,  the  construction  put  upon  the 
rule  as  laid  down  in  the  ordinance  (le  lieu  de  la  demeift^ 
des  proprietaires'^)  is  to  hold  each  province  of  the  king- 
dom foreign  to  the  owner,  except  that  in  which  his  actual 
residence  is  fixed.^ 

This  question  is  of  great  consequence  in  the  ports  of 
this  country,  from  the  local  situation   of  the   States  and 

'  La  Ysahel,  1  Dodson's  Adm.  R.  273.  In  this  case,  the  learned  judge 
seems  to  have  considered  that  the  state  of  the  different  provinces  of  the  king- 
dom made  them  to  all  intents  and  purposes  foreign  countries  to  each  other. 

*  LOrd.  de  la  Marine,  liv.  2,  tit.  1,  art.  17. 

'  Emerigon,  tome  ii,  p.  436. 


HYPOTHECATION  OF  THE  SHIP  — LIMITATIONS.  185 

the  extent  of  our  coast.  It  came  before  Chief  Justice 
Marshall,  in  the  case  of  a  vessel  owned  in  Richmond,  on 
which  ihe  master  had  given  a  bottomry  bond  in  the  city 
of  New  York.  He  adopted  the  rule  which  he  conceived 
to  be  the  reasonable  principle  of  the  maritime  law,  and 
conformable  to  what  had  been  expressly  held  in  France, 
that  the  owner  cannot  be  considered  as  present  in  every 
port  belonging  to  the  nation,  but  that  some  subdivisional 
line  must  be  taken,  on  passing  which  the  master's  power 
commences.  He  considered  it  also  well  adapted  to  our 
situation  and  highly  convenient,  to  hold  the  master  em- 
powered to  hvpothecate  in  every  jwrt  of  the  United 
States  out  of  the  State  in  which  the  owner  resides, 
where  he  has  no  agent,  liuiitine:  the  power,  as  in  all 
other  cases,  to  the  necessity  in  which  it  originates.^  This 
point  has  never  been  affirmed  by  the  app<^llatc  court ; 
but  it  is  probable  tliat  the  convenience  of  the  rule,  and 
the  great  authority  of  the  eminent  person  who  thus 
settled  it,  have  made  it  the  received  law  of  this  country. 
Indeed,  it  would  be  difficult  to  shake  it ;  for  it  is  entirely 
in  analogy  with  our  rule  upon  the  subject  of  an  implied 
lien  for  repairs  on  American  vessels,  which  are  deemed  to 
be  subject  to  such  a  lien  by  tiie  ireneral  maritime  law,  in 
everv  port  out  of  the  State  to  which  the  vessel  belongs;^ 
and  the  existence  of  a  licii  is  al\\;i\s  a  laxoiabh'  circum- 
stance for  tile  bottomry  creditor,  in  laying  the  iouiidation 
for  the  validity  of  his  bond.^ 

'  Salden  el  al.  V.  Hcnilricf.son,  1  Brockcnlirough's  R.  39G. 

*  See  Admiralty  Digest,  title  Material-Men. 

'  See  a  learned  and  elaborate  judgment  to  this  effect  in  the  case  of  The 
Vifirlin,  High  Court  of  Admiralty,  Pec.  1838;  reported  Monilily  T.nw  ]\I;ig- 
azine. 

2\ 


186  AFASTER'S   FOWKR  TO   SELL  THE   SIlIl". 

Tlu>  ni.'istiM'  biMiii;  uiiahK^  to  procure  nionoy  on  bot- 
toiiirv,  or  to  get  tlie  necessary  repairs  done  upon  j)ersonal 
credit,  or  to  i^et  them  done  without  a  ruinous  expense, 
the  (piestion  arises  >\'liether  he  lias,  by  virtue  of  his  ofticc, 
power  to  sell  the  ship,  and  il  he  has,  when  and  in  what 
manner  ? 

The  doctrine  on  liiis  subject  has  undergone  very  consid- 
erable changes  within  two  centuries  past,  in  all  the  great 
commercial  countries.  By  the  general  maritime  law  of 
Europe,  as  found  in  the  earlier  ordinances,  the  master 
had  no  such  power  virtute  officii,  under  any  circumstances. 
Absolute  and  uncpialified  prohibitions  against  a  sale  by 
the  master,  without  a  special  procuration  from  the  own- 
ers, are  contained  in  the  laws  of  Oleron,  the  laws  of 
Westcapelle,  and  of  Wisbuy  ;^  and  the  same  prohibition 
was  incorporated  into  the  marine  ordinance  of  Louis 
XIV.^  Valin  exhibits  the  legal  estimation  of  the  mas- 
ter's office,  at  that  ])eriod,  when  he  remarks  upon  this 
prohibition,  that  the  term  master  is  to  be  understood  only 
with  reference  to  the  navigation  of  the  vessel,  and  not 
as  implying  any  dominion  or  property  in  it.^  But  the 
greater  exigencies  of  modern  commerce  have  led  to  an 
expansion  of  this  rule,  and  the  master's  office  has  become 
enlarged,  to  meet  such  exigencies,  into  that  of  an  agent 
clothed  with  power  to  act,  hi  certain  circumstances,  for 
the  benefit  of  all  concerned,  when  he  formerly  could  only 
await  the  directions  of  the  owners.     Thus  the  Code  Na- 


'  Jugmens  D' Oleron,  art.  1,  Pardessus,  tome  i,  p.  323.  Lois  de  Westca- 
pelle, Jugement  3,  Pardessus,  tome  i,  p.  372.  Droit  Mar.  de  Wisbuy,  art. 
17,  Pardessus,  tome  i,  p.  472. 

*  UOrd.  de  la  Marine,  liv.  2,  tit.  1,  art.  19. 

'  Valin,  Comm.  tome  i,  p.  443,  444. 


MASTER'S  POWER  TO   SELL  THE  SHIP.  187 

poleon  expressly  introduces  as  an  exception  to  the  old 
rule,  the  case  of  innavigability  of  the  vessel,  when  legally 
proved  by  a  survey  ;^  and  this  expansion  of  the  doctrine 
is  also  found  elsewhere  \\\)0\\  the  continent. - 

In  England,. the  rule  has  also  been  enlarged.  For- 
merly it  was  doubted  whether  the  master  could  sell  at 
all ;  but  the  more  modern  cases  have  settled  that  the 
master  has  an  authority,  in  a  case  of  extreme  necessity, 
acting  with  good  faith  and  for  the  general  benefit  of  all 
concerned,  to  sell  the  ship.^  But  then  there  must  be  the 
clearest  proof  of  necessity,  it  must  be  shown  not  only 
that  the  vessel  was  in  want  of  repairs,  but  likewise  that 
it  was  impossible  to  procure  money  for  that  purpose.^ 

In  this  country,  the  rule  is  substantially  the  same,  that 
the  master,  acting  with  entire  good  faitli,  has,  in  virtue 
of  his  office,  authority  to  sell  the  ship,  in  cases  of  ex- 
treme necessity,  where  the  vessel  is  wrecked  or  innavi- 
gable, and  he  cannot  procure  money  for  the  repairs,  or 
means  to  make  them,  or  the  vessel  cannot  be  repaired 
without  an  expense  of  more  than  half  her  value  when  she 
is  repaired.^     But  as  between  the  owner  and  a  purchaser 

^  Code  de  Commerce,  art.  237. 

•  Jacobsen's  Sea  Laws,  by  Frick,  book  4,  ch.  2,  p.  360. 

'  Bell's  Comm.  439.  The  Fam,,/  and  Elmira,  Edwards's  Adm.  R.  118. 
Idle  V.  Rnijnl  Ev.  Ins.  Co.,  8  Taunton's  R.  755.  Green  v.  Roi/al  Ex.  Lis. 
Co.,  6  Taunton's  R.  68.  Read  v.  Bunham,  3  Brod.  and  Bing.  R.  147.  Ro/>- 
ertson  v.  Clark,  1  Bingham's  R.  445.  Reed  v.  Darby,  10  East's  R.  143. 
Ilayman  v.  Motion,  5  Esp.  R.  65.  Allen  v.  Sugriie,  8  B.  and  C.  561.  Somes 
V.  Su<frue,  4  Carr.  and  P.  276. 

*  The  Eanny  and  Ebnira,  Edwards's  Adm.  R.  118.  Reed  v.  lionhain,  3 
Brod.  and  Bing.  R.  147. 

»  The  Tillon,  5  Mason's  R.  465.  The  Brifr  Sarah  Ann,  2  Sumner's  R.  206, 
215.  Oordon  v.  F.  and  M.  Ins.  Co.,  2  Pick.  R.  249.  Wnin  v.  Columhian 
Ins.  Co.,  12  Pick.  R.  279.     lumtam  v.  Ph'imx  Ins.  Co.,  1 1  Johns.  R.  293. 


188  MAS'l'F.irs   roWKK   TO   SKLL  THK   SHIP. 

iit  the  sale,  the  titlo  of  tlic  lormor  is  not  devested,  unless 
sueh  neeessitv  exist,  notwitlistandini;  the  master  may 
have  act(Hl  w'nh  entire  Pood  faith  and  in  the  exereise 
ol  a  sound  diseretion.' 

Mr.  Justice  Washin<2;ton  has  held  that  the  master  has 
authorit}  to  sell  only  on  a  foreign  shore,  and  not  in  the 
country  where  the  owner  lives.^  On  the  other  hand, 
Mr.  Justice  Story  has  rejected  the  distinction,  and  held 
that  if  such  an  urgent  necessity  exists,  as  renders  every 
delay  highly  perilous,  or  ruinous  to  the  interests  of  all 
concerned,  the  duty  of  the  master  is  the  same,  whether 
the  vessel  be  stranded  on  the  home  shore  or  on  a  foreign 
shore,  whether  the  owner's  residence  be  near  or  at  a  dis- 
tance."^  This  opinion  has  been  afhrmed  by  the  Supreme 
Court  of  the  United  States,  and  is  now  undoubtedly 
the  setded  law  of  this  country.  The  rule  has  been  an- 
nounced by  the  court  in  the  follow  ing  terms.  "  The 
true  criterion  for  determining  the  occurrence  of  the  mas- 
ter's authority  to  sell  is  the  inquiry,  whether  the  owners 
or  insurers,  w  hen  they  are  not  distant  from  the  scene  of 
stranding,  can,  by  the  earliest  use  of  the  ordinary  means 
to  convey  intelligence,  be  informed  of  the  situation  of  the 
vessel  m  time  to  direct  the  master  before  she  will  })robably 
be  lost.  If  there  is  a  probability  of  loss,  and  it  is  made 
more  hazardous  by  every  day's  delay,  the  master  may 
then  act  promptly,  to  save  something  for  the   benefit  of 


Center  v.  American  Ins.  Co.,  7  Cowen's  R.  5CA.  American  Ins.  Co.  v.  Cen- 
ter, 4  Wendell's  R.  45.  Scull  v.  Briddlc,  2  Wash.  R.  150.  Patapsco  Ins. 
Co.  V.  Southgate,  5  Pcters's  S.  C.  R.  G04,  620.    3  Kent's  Coram,  p.  174,  175. 

'   The  Tilton,  5  Mason's  R.  465. 

«  Scvll  V.  Briddle,  2  Wash.  R.  150. 

»  The  Brig  Sarah  Ann,  2  Sumner's  R.  215. 


MASTER'S   POWER  TO   SELL  THE   SHIP.  189 

all  concerned,  thouoh  but  little  may  be  saved.  There  is 
no  way  of  doing  so  more  effectual  than  by  exposing  the 
vessel  to  sale  ;  by  wliich  the  enterprise  of  such  men  is 
brought  into  competition  as  are  accustomed  to  encounter 
such  risks,  and  who  know  from  experience  how  to  esti- 
mate the  probable  profits  and  losses  of  such  adven- 
tures." ^ 

I  am  not  aware  of  the  existence  of  any  different  rule 
for  the  master's  conduct,  as  to  what  constitutes  a  case  of 
necessity,  between  himself  and  the  owner,  and  between 
the  owner  and  an  underwriter.  It  has  been  said  that 
the  law  of  cases  of  necessity  is  not  likely  to  be  well  fur- 
nished with  precise  rules  ;  and  the  remark  points  out  the 
danger  of  attempting  to  lay  down  rules  for  what  may 
come  in  such  an  infinite  variety  of  forms.  But  the  kind 
of  necessity  that  will  authorize  the  master  to  sell,  and 
the  predicaments  legally  constituting  such  necessity,  have 
been  occasionally  adjudicated ;  and  a  statement  of  the 
doctrine,  as  laid  down  in  the  leading  cases  upon  this 
question,  as  between  owner  and  und(;rwriter,  will  pre- 
sent a  view  of  the  master's  duty  applicable  also  to  his 
relation  to  the  owner. 

In  the  Circuit  Court  of  the  United  States  for  the  First 
Circuit,  tlu;  principle  has  been  announced  in  the  follow- 
iu"^  terms:  "  It  is  not  sulficicnt  to  a  valid  sale  by  the 
master,  th;it  he  acted  with  ^ood  faith,  and  in  the  exer- 
cise of  his  bisL  discrciion.  There  must  be  a  moral  ne- 
cessity for  the  sale,  so  as  to  make  it  an  urgent  duty  upon 
the  master  to  sell  for  the  |)reservation  of  the  interest  of 
all  concerned.      Il    the  circumstances  were  such,  that  an 

•  New  Eng.  Ins.  Co.  v.  The  ling  ^urahAun,  13  I'elcrb'i  S.  C.R.387. 


190  MASTKirS    IH)\VKK  TO   SKLL  THE   SHIP. 

OW1UM-,  of  reasonable  prudence  and  discretion,  acting 
upon  the  pressure  of  the  occasion,  would  have  directed 
the  sale,  Ironi  a  linn  opinion  that  the  vessel  could  not  be 
delivered  from  the  ])eril  at  all,  or  not  without  the  hazard 
of  an  expense  utterly  disproportionate  to  her  real  value, 
as  she  lies,  then  a  sale  by  the  master  is  justifiable,  and 
must  be  deemed  to  have  been  made  under  a  moral  neces- 
sity. Tlie  master  thus  becomes  the  agent  of  all  con- 
cerned in  the  voyage,  and  when  an  abandonment  has 
been  accepted  by  underwriters,  he  becomes,  by  relation, 
their  agent,  from  the  time  of  the  loss  to  which  the  aban- 
donment relates,  and  a  sale  by  him  is  made  as  agent  of 
the  underwriters."  ' 

The  Supreme  Court  of  the  State  of  Massachusetts 
have  held  the  following  language.  "  The  master  of  a 
vessel  insured,  ^^  hieh  has  received  damage  by  the  perils 
of  the  sea,  may,  in  cases  of  extreme  necessity,  sell  the 
vessel,  and  upon  such  a  sale  so  occasioned,  may  be 
founded  a  claim  against  the  underwriters  for  a  total  loss. 
This  necessity  must  be  of  a  moral  nature."  ^  Again, 
they  say,  "  There  must  be  something  more  than  expe- 
diency in  the  case  ;  the  sale  should  be  indispensably  requi- 
site. The  reasons  for  it  should  be  cogent.  It  must  be 
a  necessity  which  leaves  no  alternative  ;  which  prescribes 
the  law  for  itself,  and  puts  the  party  in  a  positive  state  of 
compulsion  to  act."^     So  too,  the   Court  of  Errors  of 


»  The  Sarah  Ann,  2  Sumner's  R.  206.  See  also  Robinson  v.  Common- 
wealth  Ins.  Co.,  3  Sumner's  R.  220,  226.  A  master  may  be  presumed,  in 
ordering  the  sale  of  his  ship,  to  have  done  his  duty  properly,  if  there  are  no 
proofs  to  the  contrary. 

*  Gordon  v.  Mass.  Fire  and  Mar.  Ins.  Co.,  2  Pick.  R.  249. 

»  Hall  V.  The  Franklin  Ins.  Co.,  9  Pick.  R.  466. 


MASTER'S  POWER  TO  SELL  THE  SHIP.  191 

the  State  of  New  York  have  held  that  "  the  master  is 
not  authorized  to  sell,  except  in  a  case  of  absolute  neces- 
sity, where  he  is  not  in  a  situation  to  consult  with  his 
owner,  and  where  the  preservation  of  the  property  makes 
it  necessary  for  him  to  act  as  the  agent  of  whom  it  may 
concern."  ^ 

What  then  constitutes  in  legal  contemplation  such  a 
case  of  necessity  ?  It  is  either  when  the  vessel  cannot 
be  rescued  at  all,  as  a  vessel,  from  the  peril,  being  an  ac- 
tual total  loss,  or  when  she  cannot  be  repaired  except 
at  a  cost  exceeding  her  value  when  repaired,  being  a 
technical  total  loss,  or  when  the  means  of  reparation  can- 
not be  obtained.^  Thus  it  has  been  held  by  the  Supreme 
Court  of  the  State  of  Massachusetts,  that  if  from  the 
high  price  of  materials  and  labor,  or  the  difficulty  of  pro- 
curing them,  the  expense  of  repairing  will  be  more  than 
the  worth  of  the  vessel  after  she  is  repaired,  the  master 
may  sell :  he  becomes,  in  such  a  case,  by  law,  an  agent 
for  the  insurers  as  well  as  the  insured.^  But  the  expense 
of  making  the  repairs  at  the  place  where  the  ship  is  in- 
jured is  not  the  criterion  for  determining  whether  there 
is  a  constructive  total  loss,  provided  the  vessel  can  be  put 
into  a  state  to  be  safely  navigated   to  a  port  where  the 


'  American  Ins.  Co.  v.  Cenlrr,  4  Wendell's  E.  45. 

*  In  England,  it  seems  that  the  rule  of  a  technical  total  loss  has  not  been 
adopted,  to  warrant  a  sale  by  the  master.  It  is  there  the  duty  of  the  mas- 
ter to  repair  the  vessel,  unless  there  is  an  actual  total  loss,  or  he  has  no 
means  of  repairing  and  cannot  procure  them  by  bottoiiiry.  See  Idle  v. 
Rmjfd  E.Tch.  Ins.  Co.,  7  Taunton's  R.  755.  Rrad  v.  Bonham,  3  Brod.  and 
Bing.  R.  147.  Robrrtson  v.  Clark,  1  Ring.  R.  445.  Cambridge  v.  Andcr- 
ton,  4  Dow.  and  Ryl.  R,  203. 

'  (iordon  v.  Mas:t.  Firr  and  Mar.  Ins.  Co.,  2  Pick.  R.  249.  See  also 
Jlm>:r.  Ins.  Co.  v.  Center,  \  Wendell's  R.  45. 


192  MASTER'S  POWER  TO  SELL  THE  SHIP. 

iej)airs  can  be  made  for  less  than  fifty  ])vy  cent,  on  her 
valut>.'      By  reparation,  liowever,  is  meant  the  getting  off 
of  a  stranded  vessel  and   placing  her  in  a  sitnation  to  re- 
ceive repairs,  as  well  as  the  making  of  the  repairs  them- 
selves.    Indeed,  the  most  counnon  occasions  for  the  justi- 
fiable sale  of  a  ship  arc  thos(;  where  the  vessel  is  stranded 
in  an  exposed  situation,  the  master  not  having  the  means, 
or   not  being  able  to  procure  the  means,  of  rescuing  her 
from  the  peril.     The  law  of  cases  of  this  dcscrijjtion  was 
recently  fully  expounded   by  the  Supreme  Court  of  the 
United  States,  in  the  case  of  The  Sarah  Ann,  on  ai)peal 
from  the  Circuit  Court  for  the  First  Circuit.     "  All  will 
agree,"  say  the  court,  "  that  the  master  must  act  in  good 
faith,  exercise  his  best  discretion  for  the  benefit  of  all  con- 
cerned, and  that  it  can  only  be  done  upon  the  compulsion 
of  a  necessity,  to  be  determined  in  each  case  by  the  ac- 
tual and  impending  peril  to  which  the  vessel  is  exposed  ; 
from  which  it  is  probable,  in  the  oj)inion  of  persons  com- 
petent to  Judge,  that  the  vessel  cannot  be  saved.     This 
is  an  extreme  necessity.    The  master  must  have  the  best 
information  which   can  be  got,  and   must   act  with  the 
most  pure  good  faith.     The  necessity  for  a  sale  cannot 
be  denied  when  the  peril,  in  the  opinions  of  those  capa- 
ble of  forming  a  judgment,  makes  a  loss  probable  ;  though 
the  vessel  may  in  a  short  time  afterwards  be  got  off  and 
put  afloat.     It  is  true,  the  opinion  or  Judgment  of  compe- 
tent persons  may  be  falsified  by  the  event,  and  that  their 
judgment  may  be  shown  to  have  been  erroneous  by  the 
better  knowledge  of  other  persons,  showing  it  was  proba- 
ble the  vessel  could  have  been  extricated  from  her  peril 

'  Hall  V.  Franklui  Ins.  Co.,  9  Pick.  R.  466. 


WASTER'S  POWER  TO   SELL  THE  SHIP.  193 

without  great  injury  or  incurring  great  expense ;  and  the 
master's  incompetency  to  form  a  judgment,  or  to  act  with 
a  proper  discretion  in  the  case,  may  be  shown.  But  from 
the  mere  fact  of  tlie  vessel  havins;  been  extricated  from 
her  peril,  no  presumption  can  be  raised  of  the  master's 

incompetency,  or  of  that  of  his  advisers It  must 

also  be  proved,  in  a  particular  case  given,  that  the  means 
in  the  master's  power,  or  which  he  may  command  from 
those  to  get  his  vessel  off,  had  not  been  applied,  and  that 
there  would  have  been  a  controlling  difference  between 
the  value  of  the  vessel,  as  her  condition  may  be  when  she 
is  old,  and  the  expense  to  be  incurred  in  getting  her  off. 
Nor  \\  ill  any  ascertainment  of  the  cost  of  repairs,  subse- 
quent to  the  extrication  of  the  vessel,  raise  a  presumption 
against  the  necessity  to  sell,  whatever  may  be  her  condi- 
tion as  to  strength,  and  though  she  may  not  be  injured  in 
the  hull,  if  the  actual  and  immediate  prospective  danger 
menaces  a  probable  total  loss."^ 

It  was  also  held  in  the  same  case,  that  the  power  of 
the  master  to  sell  the  hull  of  his  stranded  vessel  exists 
also  as  to  her  rigging  and  sails,  which  he  may  have  strip- 
ped from  her  after  unsuccessful  efforts  to  get  her  alloat ; 
or  when  his  vessel,  in  his  own  judgment,  and  that  of 
others  competent  to  form  an  opinion  and  to  advise,  can- 
not be  delivered  from  her  peril.  The  presumption  is, 
that  they  are  injured  :  they  can  never  again  be  applied 
to  the  use  of  the  vessel,  and  llicy  must  ordinarily  become 
from  day  to  day  of  less  value,  in  fact,  they  are  a  part 
of  The  vessel  when   stri])|K'd  from   her,  and  \\\r  mere  act 

'  Neiv  Enqlfind  Insurance  Company  v.  The  Brig  Sarah  Ann,  13  Pcters's 
S.  C.  R.  387. 

25 


194  MASTER  HAS  A  srECI  \L  PROPERTY  IJS  THE  SHIP. 

of  Separation  by  the  vigilance  and  elToit  of  the  master, 
by  A\liieh  thoy  arc  saved  from  the  ocean,  does  not  take 
them  out  of  liis  implied  power  to  sell  in  a  case  of  ne- 
cessity.' 

But  though  the  master's  power  of  sale  is  thus  limited, 
his  possession  of  tlie  ship  is  not  that  of  a  mere  servant. 
The  law  treats  him  as  having  for  some  j)urposes  a  special 
proi)erty  in  it.  lie  may  therefore  bring  an  action  of 
trespass  for  any  tort  done  to  the  vessel,  or  institute  pro- 
ceedings therefor  in  the  Admiralty,  describing  the  ship 
as  his  own.  So  too,  where  the  freight  has  been  earned 
under  a  contract  entered  into  by  himself,  he  may  sue  in 
his  own  name  for  the  freight  due  on  delivery  of  the  goods.^ 
So  too  the  master  is  not  only  authorized,  but  it  is  his 
duty,  in  cases  of  capture,  to  remain  by  the  vessel  and 
await  the  result  of  the  prize  proceedings.  If  the  vessel 
is  condemned,  and  there  is  opportunity  for  a  successful 
appeal,  he  should  carry  the  cause  to  the  appellate  court ; 
and  in  such  cases  he  is  to  represent  and  act  for  the  own- 
ers, until  the  directions  or  wishes  of  the  latter  are  made 
known.'     But  though  the  master  is  bound  to  save  the 

^  New  England  Insurance  Company  v.  The  Brig  Sarah  Ann,  13  Peters's 
S.  C.  R.  3S7. 

'  Shields  V.  Davis,  6  Taunton's  R.  G5.  Williams  v.  Millington,  1  H.  Bl. 
81.  But  it  has  been  held  that  the  master  cannot  sue  in  his  own  name 
for  demurrage,  because  there  is  no  implied  contract,  between  himself 
and  the  party  from  whom  it  may  be  due,  as  there  is  with  the  owner. 
Brouncher  v.  Scoit,  4  Taunton's  R.  1.  Lord  Tenlerden  remarks  that  it 
does  not  appear  by  the  report  of  this  case  what  were  the  terms  of  the  con- 
tract, and  whether  there  was  any  written  contract,  for  the  carriage  of  the 
goods.     This  might  make  a  material  difTcrence. 

=>  Willard  V.  Dorr,  3  Mason's  R.  IGl.  The  Saratoga,  2  Gallis.  R.  178. 
Broion  v.  Lull,  2  Sumner's  R.  443.  Francis  v.  Ocean  Ins.  Co.,  6  Coweu's 
R.  404.     Sims  v.  Sundiy  Mariners,  2  Peters's  Adm.  R.  393. 


OWiSrER  LIABLE  FOR  MASTER'S  TRESPASS.  195 

ship  and  cargo  for  the  owners  by  all  fan-  means,  he  is  not 
bound  to  employ  fraud  to  effect  that  object,  or  to  violate 
the  good  faith  even  of  an  enemy. ^  The  consideration 
of  the  master's  relation  to  the  freight  is  reserved  for  a 
subsequent  chapter.  In  respect  to  the  torts  committed 
by  the  master,  the  principles  regulating  the  liability  of 
the  master  and  the  owners  are  now  to  be  stated. 

The  master  is  bound  to  his  owners,  and  he  and  they 
to  every  one  who  may  be  affected  by  his  acts,  for  his 
skill,  care  and  attention  in  the  management  of  his  vessel. 
It  is  not  sufficient  that  he  exercises  his  best  judgment ; 
he  is  bound  to  show  that  he  possessed  and  exercised  the 
judgment  of  a  good  commander,  with  reasonable  skill, 
care,  prudence  an^  fidelity.- 

The  liability  of  the  owners  for  the  presumed  trespasses 
of  the  master,  is  most  frequently  availed  of  by  the  injured 
party  in  cases  of  collision.  The  master  being  at  all 
times  the  responsible  agent  of  the  owners,  it  is  a  general 
principle  of  law,  that  the  owner's  liability  is  not  varied 
by  the  fiict  of  the  presence  of  a  pilot,  in  whose  control 
the  actual  navigation  of  the  ship  is  for  the  time  being  f 
provided  the  master  is  not  by  statute  compelled  under  a 
penalty  to  take  a  pilot  on  board.  In  such  case,  the 
taking  the  ])il()t  is  a  vohuitaiy  act,  and  he  becomes  the 
servant  of  the  owner.     But  if  th(^   master  is  by  statute 

'  Ilannmj  v.  Eve,  3  Cranch's  R.  212. 

'^  filonr.  V.  Killnnd,  1  Wasliiiigton's  R.  112,  Purviuncc  v.  Angus,  1  Dal- 
las's R.  181.  But  the  owner  is  not  bound  for  the  wilful  trespasses  and 
injuries  of  the  master,  or  crew,  wliich  lur  has  not  oidi-red,  and  wliich  were 
not  done  in  the  course  of  his  duty.  Neither  is  the  master  liable  for  surh 
trespasses  committed  by  the  crew.  Bowchcr  v.  Noidstruin,  1  Taunton's 
R.  568. 

'  Yates  V.  Broum,  8  Pick.  R.  23. 


19()  OWNER   LIABLK  IN  COLLISION  — EXCF,rTIONS. 

compelled  lo  lake  a  pilot,  the  owners  are  not  responsible 
for  his  acts  while  the  vessel  is  under  his  control.'  The 
reason  of  tiie  distinction  is  this.     The  owner  is  responsi- 

'  Attorney  General  v.  Case,  3  Price's  R.  302.  Mackintosh  v.  Slade,  6 
Barn,  and  Crosw.  657.  Carruthcrs  v.  Sijdcbolham,  4  Maule  and  Schv. 
77.  The  Christiana,  2  Haggard's  R.  183.  There  have  been  some  deci- 
sions in  England  and  in  ihis  country,  which  affirm  the  owner's  liability, 
even  when  a  duly  licensed  pilot  is  on  board.  The  Neptune  tlie  Second,  1 
Dodson's  Adm.  R.  467.  Bussy  v.  Donaldson,  4  Dallas's  R.  206.  Yates  v. 
BroH-n,  8  Pick.  23.  But  it  is  now  rendered  probable  that  Lord  Stowell  decided 
the  case  of  The  Neptune  the  Second  in  ignorance  of  the  then  recent  Act  of 
Parliament  which  required  a  pilot  to  be  taken  on  board,  and  that  the  ques- 
tion whether  the  pilot  was  taken  on  board  by  the  voluntary  act  of  the  mas- 
tor,  or  by  compulsion  of  law,  was  not  mooted  before  him.  (See  the  case  of 
The  Protector,  before  Dr.  Lushington,  High  Court  of  Admiralty,  July,  1839, 
reported  in  Monthly  Law  Magazine,  London,  August,  1839,  vol.  5,  p.  192.) 
Lord  Stowell  decided  the  cause  before  him  upon  the  general  principle  of 
the  owner's  liability;  as  did  also  the  Supreme  Court  of  Massachusetts. 
As  to  the  case  of  Bussy  v.  Donaldson,  it  does  not  distinctly  appear  from  the 
report  what  were  the  provisions  of  the  Pilot  Act  under  which  the  owners 
claimed  exemption;  but  it  maybe  inferred  that  the  Court  meant  to  affirm 
the  doctrine  of  the  owner's  liability  although  the  pilot  was  not  his  volunta- 
rily chosen  servant.  In  this,  the  decision  stands  opposed  to  several  English 
cases  above  cited.  In  The  Attorney  General  v.  Case,  the  owner  was  held 
liable  because  the  pilot  was  taken  on  board  under  the  Liverpool  Act,  and 
not  under  the  general  Act,  and  therefore  it  was  optional  lo  take  one  or  not. 
Mackintosh  v.  Sladc,  turned  upon  the  question  whether  the  master  was 
bound  to  take  a  pilot;  and  the  Court  being  of  opinion  that  he  was  so 
bound,  held  the  owner  exonerated.  In  Carruthers  v.  Sydebotham,  Lord 
EUenborough  asked,  "  if  the  master  cannot  navigate  without  a  pilot,  except 
under  a  penalty,  is  he  not  under  the  compulsion  of  law  to  take  a  pilot? 
And,  if  so,  is  it  just  that  he  should  be  answerable  for  the  misconduct  of  a 
person  whose  appointment  the  provisions  of  the  law  have  taken  out  of  his 
hands,  placing  the  ship  in  the  hands  and  under  the  conduct  of  the  pilot? 
The  consequence  is,  that  there  is  no  privity  between  them."  See  also 
Snell  V.  Rich,  1  Johns.  R.  305,  and  the  elaborate  judgment  of  Dr.  Lushing- 
ton, in  The  Protector,  before  cited.  Dcnnet  v.  Moita,  7  Taunt.  R.  258. 
Ritchie  v.  Bowsficld,  Ibid.  .309.  The  Girolamo,  3  Hag.  Adm.  R.  169. 
For  a  collision  occasioned  by  the  negligence  of  the  master  of  a  steam- 
boat wliile  towing  a  ship,  the  owners  of  such  ship  are  not  liable.  Sprout  v. 
Ilememvay,  14  Pick.  R.  1. 


OWNER'S    LIABILITY.  197 

Lie  for  the  acts  of  the  master  and  crew,  because  they  are 
liis  agents,  selected  and  appointed  by  him,  and  he  is 
bound  to  provide  persons  of  adequate  skill,  diligence, 
industry  and  sobriety,  for  the  proper  management  of  the 
vessel.  For  the  same  reason  he  is  responsible  for  the 
acts  of  any  person  to  whom  the  master  voluntarily  en- 
trusts the  navigation  of  the  ship.  But  if  the  owner's 
authority  is  superseded  by  legislative  authority,  and  a 
person  is  put  on  board  whose  qualifications  the  owner 
does  not  decide  upon,  but  whose  qualifications  are  de- 
termined by  others,  it  is  only  conformable  to  a  principle 
of  natural  justice  to  hold  the  owner  exempted  from 
responsibihty  for  the  acts  of  such  person.^ 

In  like  manner,  the  owner  is  responsible  for  the  dama- 
ges occasioned  by  a  tortious  discharge  of  a  mariner  by  the 
master.^  So  too,  the  owner  is  responsible  for  every  injury 
to  the  cargo  that  might  have  been  prevented  by  human 
foresight  or  care.  If  the  goods  are  injured  by  rats,  the  mas- 
ter and  owner  must  make  good  the  loss,  because,  accord- 
ing to  the  injunction  of  the  old  law,  they  should  ha\  e  had 

•  A  still  further  question  arises  as  to  the  burthen  of  proof,  in  cases  where 
a  pilot  is  on  board  by  a  statute  regulation.  Is  the  presumption  that  the 
pilot  was  in  charge  of  the  vessel  and  therefore  occasioned  the  damage,  to 
prevail  ?  Or  is  the  owner  bound  to  prove  that  the  pilot  was  actually  direct- 
ing the  course  of  the  vessel  ?  The  cases  of  Bennct  v.  Moita,  and  Ritchie  v. 
Bowsfield  seem  to  favor  the  doctrine  that  the  presence  of  the  pilot  is  prima 
fade  evidence  that  the  damage  was  occasioned  by  his  negligence  or  un- 
skilfulncss.  But  Dr.  Lushington,  in  The  Protector,  (ante)  holds  the  con- 
trary, and  that  as  the  owner  claims  exemption  from  a  general  liability, 
under  a  defence  of  a  special  nature,  he  is  bomul  to  siiow  iilliniintivcly  that 
the  injury  was  the  fault  of  the  pilot.  Wlu'thor  the  personal  exemption  of 
the  owner,  by  virtue  of  such  statutes,  lakes  away  also  the  remedy  in  rctn 
against  the  vessel,  which  exists  by  the  iiiarilime  law  of  nations  —  See 
The.  r.irolamn,  3  Hag.  Adin.  R.  169. 

«  Ornc  v.  Townxnul,  4  Mason's   R.  541.     Athjnsv.  Durrotrs,  1   Petcrs's 
Adm.  R.  24.5. 


108  OWNER'S  LIABILITY  — LIMITATIONS. 

a  cat  on  board.'  ll'tlu;  cargo  is  iiijui-cd  by  a  leak  in  the 
vessel,  which  is  noi  occasioned  by  perils  of  the  seas,  un- 
connected Avith  any  negligence  on  the  part  of  the  master 
or  mariners  in  any  matter  which  belongs  to  them  to 
pertorni  or  ])rovide,  or  if  the  goods  arc  lost  or  injured  by 
being  stowed  in  a  part  of  tlie  vessel  where  the  master  is 
not  authorized  to  stow  them,  the  owner  will  be  responsi- 
ble for  the  injury.-  So  too,  the  master  and  owners  are 
responsible  for  goods  embezzled  by  the  crew,  or  stolen  by 
others,  although  no  personal  fault  or  negligence  is  attribu- 
table to  the  master,  because  they  are  bound  for  the  per- 
sonal fidelity  and  diligence  of  all  their  servants.^ 

The  extent  of  the  owner's  res})onsibility  for  the  acts 
of  the  master  has  been  various  under  different  systems 
of  law.     By  the  general  maritime  law    of  continental 

^  Si  haver  sera  gastat  per  rates  en  la  nau,  k  no  ha  gat  en  la  nau,  lo  senyor  de 
la  nau  sera  tengut  de  esmanar.  Consolato  del  Mare,  ch.  22,  [67],  23,  [68], 
Pardessiis,  tome  ii,  p.  75.  Emerigon,  Dcs  Assurances,  tome  i,  p.  377,  The 
Consulate,  with  that  didactic  precisioa  for  which  it  is  remarkable,  gravely 
follows  out  the  questions  arising  on  the  death  of  the  cat  during  the  voyage. 
In  this  event,  the  master  is  to  provide  himself  with  a  new  cat  or  cats  as  soon 
as  he  arrives  at  a  port  where  he  can  either  buy  or  beg  them  ;  and  for  the 
damage  accruing  to  the  goods  during  the  interregnum,  between  the  demise 
of  the  old,  and  the  accession  of  the  new  cat,  the  master  is  not  to  be  respon- 
sible, for  it  is  an  inevitable  accident.  Yet  I  do  not  observe  that  "  the  good 
customs  of  the  sea,"  {les  hones  costumes  del  mar)  as  this  truly  great  monu- 
ment of  jurisprudence  was  entitled,  have  contemplated  the  case  of  a  single 
cat  only  being  put  on  board  by  the  master,  and  being  overpowered  by  the 
rats  during  the  voyage. 

-  Consolato  del  Mare,  ch.  18,  [63],  19,  [64],  20,  [65],  Pardessus,  tome  ii,  p. 
71,  72,  73.  Emerigon,  tome  i,  p.  373.  Morse  v.  Slue,  1  Vent.  R.  238. 
Proprietors  of  the  Trent  and  Mersey  Navigation  v.  Wood,  cited  Abb.  on 
Ship.  p.  245.  The  Rebecca,  Ware's  R.  188.  The  Reeside,  2  Sumner's  R. 
567. 

^  Schiefflin  V.  Harvey,  6  Johns.  R.  170.  Watkinson  v.  Laughton,  8  Ibid. 
164.  Foot  V.  Wisiealt,  14  Ibid.  304.  Denison  v.  Seymour,  9  Wendell's 
R.  8. 


OWNER'S  LIABILITY  —  LIMITATIONS.  1 99 

Europe,  it  seems  to  be  quite  clear  that  the  owners  are 
responsible  for  the  master's  obligations,  ex  delicto,  only  to 
the  extent  of  their  interest  in  the  vessel  and  freight,  and 
that  by  abandoning  them  they  are  discharged.^  But 
neither  the  civil  law  nor  the  common  law  of  England 
acknowledges  any  such  limitation.  The  owner  is  per- 
sonally responsible  for  all  the  obligations  which  the  mas- 
ter incurs  within  the  scope  of  his  authority  as  master,  to 
their  full  extent,  ^\  hcther  arising  ex  contractu  or  ex  de- 
licto ;  and  it  is  not  known  that  any  other  than  a  special 
statute  limitation,  which  marks  what  the  general  rule  is, 
has  ever  been  introduced  into  this  country,  by  way  of 
usage  or  otherwise.'-^  But  in  England  several  Acts  of  Par- 
liament have  limited  the  owners'  responsibility  for  the 
tortious  acts  of  the  master,  to  the  value  of  ship  and  freight ; 
and  the  same  limitation  has  been  enacted  in  this  country, 
by  several  of  the  State  legislatures.^ 

'  Consolato  del  Mare,  cli.  141,  [1S6],  142,  [227],  27,  [72],  Pardessus, 
tome  ii.  Grotius  de  Jure  Belli  et  Pads,  liv.  2,  cap.  11,  sec.  13.  Emerigon, 
Contrats  a  la  Grosse,  ch.  4,  sec.  11.  UOrd.  de  la  Marine,  liv.  2,  lit.  8, 
art.  2.  Valin,  Comm.  tome  i,  p.  568.  Pothier,  Louaf;cs  Mar.  n.  51. 
Whether  the  same  limitation  did  not  also  apply  to  the  master's  obligations 
arising  e.r  contractu,  is  a  vexed  question,  which  the  French  jurists  have  dis- 
cussed upon  diflerent  sides.  See  Pardessus,  Cours  de  Droit  Commercial, 
JJoulay  Paty,  Cours  de  Droit  Maritime,  tome  i,  p.  263,  298,  and  Valin  and 
Pothier,  nt  supra.  Amer.  Jurist,  vol.  19,  p.  233.  See  also  this  subject 
discussed  with  much  acumen  in  the  cases  of  The  Rebecca,  and  The  Pha/jc, 
Ware's  Pv.  p.  194,  et  scq.  2G7,  et  seq. 

'  Abbot  on  Shipping,  part  3,  ch.  5,  p.  203  ;  P.  2,  ch.  2,  p.  98,  99. 
3  Kent's  Comm.  p.  21G,  217,  218.  The  Phwbc,  Ware's  R.  203.  Thr  Rrhrcca, 
Ibid.  207.  Molinra  v.  M'Kown,  1  Miller's  Louis.  R.  259.  Sherwood  v.  Hall, 
3  Sumner's  R.  127. 

'  Act  20  Geo.  3,  c.  86  ;  53  Geo.  3,  c.  159.  Revised  Statutes  of  Mass.  ch. 
32,  sec.  1-4.  Laws  of  Maine,  vol.  l.cii.  1  1,  sec.  8.  These  statute  exemp- 
tions arc  supposed  to  be  rare  iu  this  country. 


200  MASTER'S   PKRSOJNAL  RESPONSIBILITY. 

TluM'c  is,  also,  l)\  the  maritime  knv,  a  i(>al  ()l)lii2;ation 
of  tiie  owner,  !)>  tlic  implied  liypotliecation  of  the  ship, 
as  ^^  ell  as  a  personal  liability.  Every  contract  of  the 
master  for  repairs  and  supplies,  in  a  foreign  port,  imports 
an  In  |)otheeation.^  So  too,  the  master's  contract  for 
the  earriaiie  of  j^oods  subjects  the  vessel  to  a  lien  for 
their  value,  in  the  (>vent  of  their  beinj;  lost  by  any  fault 
or  neglect  on  his  part,  or  through  the  insufficiency  of 
the  vessel.'-  These  liens  have  been  incorporated  into 
the  law  of  England  and  of  this  country.''  In  cases  of 
collision,  also,  the  master's  negligence  or  \\  ilful  trespass 
subjects  the  vessel  to  a  lien,  by  the  general  maritime 
law.-* 

We  have  thus  far  considered  the  liability  of  the  owner 
separately  from  that  of  the  master,  and  have  now  to 
inquire  what  personal  responsibility  the  master  also  incurs 
to  third  persons,  when  acting  in  his  official  character. 
The  general  principle  is,  that  the  master  is  always  per- 
sonally liable  for  his  contracts  and  torts.  He  is  liable 
for  his  contracts,  upon  a  rule  of  universal  prevalence, 
which  is  said  to  have  been  introduced  in  favor  of  com- 
merce, that  th(i  persons  with  whom  he  deals  may  not  be 
compelled  to  find  out  the  owners  and  seek  their  remedy 
against  them,  but  that  they  may  have  a  double  remedy, 

»  The  Jenisdem,  2  Gallison's  R.  345.  The  Nestor,  1  Sumner's  R,  73. 
The  FortUnde,  3  Ibid.  228. 

*  Chirac,  les  Us  et  Coulumes  de  la  mer,  p.  72.  L'  Ord.  de  la  MarAiv.  3,tit.  1, 
art.  11.  Abbot  on  Shipping,  part  2,  ch.  2,  p.  93.  The  Rebecca,  "Ware's  R. 
194.     The  Phabc,  Ware's  R.  267. 

^  Abbot,  ut  supra.      The  Rebecca,  The  Phrebe,  ut  supra. 

*  The  T/iames,  5  Rob.  Adra.  R.  308.  The  Neptune,  1  Dods.  Adm.  R. 
467.  The  Woodrop  Sims,  2  lb.  83.  The  Dundee,  1  Hag.  Adm.  R.  109. 
Gale  V.  Laurie,  5  B.  &  Cresw.  156.     The  Girolamo,  3  Hag.  Adm.  R.  169. 


MASTER'S  PERSONAL  LIABILITY.  201 

against  the  owners  and  ao:ainst  the  master  ;^  and  he  is 
liable  upon  his  torts,  because  the  party  actually  commit- 
tins:  a  trespass  can  never  shelter  himself  under  a  plea 
that  he  did  the  wrong  only  in  the  character  of  an  agent, 
and  because  the  maritime  law,  for  reasons  of  its  peculiar 
policy,  has  expressly  made  him  liable  also  for  liis  own 
non-feasances  and  negligence,  as  well  as  for  those  of  all 
his  officers  and  crew.  But  there  is  this  distinction  be- 
tween cases  of  tort  and  contract ;  that  while  it  is  not 
competent  to  the  master  of  a  vessel  to  commit  a  trespass 
or  be  guiltv  of  ncgliirence  merely  as  an  agent,  and  to 
confine  the  liability  therefor  to  his  principal,  it  is  compe- 
tent to  him  to  contract  with  third  persons,  so  as  to  con- 
fine the  responsibility  to  his  owners.  The  master's  lia- 
bility in  cases  of  contract  and  tort  should  therefore  be 
considered  separately. 

The  general  principle  then  is,  that,  without  some  spe- 
cial contract,  the  master  is  personally  liable  upon  all  the 
contracts  which  he  makes  respecting  the  employment, 
repairs,  supplies  and  navigation  of  the  ship.  He  is  lia- 
ble on  charter-parties  and  bills  of  lading  signed  by  him- 
self. The  goods  taken  on  board  must  be  delivered,  not- 
withstanding any  cause,  which  does  not  come  within  the 
meaning  of  an  act  of  providence,  or  within  the  excep- 
tions ])r{)vi(l((i  for  in  tlir  bill  of  l.idiiiir.  If  they  are  lost 
or  injin-('d  bv  any  negligence  or  unskilfulncss  of  the  mas- 
ter or  crew,  or  stolen  by  othcMS,  he  is  })ersonally  respon- 
sible, as  well  as  the  owner,  both  being  regarded    by  the 

'  Abbot  on  Ship,  part  2,  ch.  2,  sec.  2,  p.  90.     Emcrigon,  Dcx  Assurances, 
tome  ii,  ch.  45,  sec.  10,  p.  443.     1  Bell's  Coiura.  sec.  434,  p.  413, 

26 


202  MASTER'S  PERSONAL  LIABILITY. 

law  of  England  and  ol  this  country  as  common  carriers.* 
So,  too,  the  master  is  liable  for  repairs  and  snpj)lies 
ordered  by  himself,  whether  at  home  or  abroad,  unless  it 
appears  by  the  contract  that  credit  was  given  only  to  the 
owner.-  And  he  is  liable  for  the  wages  of  the  seamen 
and  for  pilotage."' 

But  the  contract  may  be  made  upon  the  exclusive 
credit  of  the  owner.  If  there  is  a  special  promise 
of  the  master,  the  owner  is  not  liable  ;  and  e  converso, 
where  there  is  a  special  promise  by  the  owners,  the 
master  is  discharged  from  any  obligation."  The  mas- 
ter may  also,  by  virtue  of  his  general  authority,  order 
necessary  repairs,  or  make  contracts  within  the  ordinary 
scope  of  the  ship's  employment,  upon  the  exclusive  lia- 
bility of  the  owner,  disclosing  his  name,  and  stating  that 
he  himself  is  not  to  be  responsible.  But  this  precaution 
not  having  been  taken,  it  becomes  a  question  of  evidence 
and  of  what  will  amount  to  evidence  of  exclusive  credit, 

'  Morse  v.  Slue,  1  Vent.  190,  23S.  Boucher  v.  Lmvson,  Rep.  temp. 
Hardw.  183.  Dale  v.  Hall,  1  Wils.  R.  281.  Proprietors  of  Trent  Navi- 
gation V.  Wood,  3  Esp.  R.  127.  Watkinson  v.  Laughton,  8  Johns.  R.  164. 
Eliot  V.  Russell,  10  Ibid.  1.  The  master  and  owner  are  severally  liable  to 
indemnify  the  shipper  in  the  value  of  the  goods  at  the  place  where  they 
were  to  be  delivered.  Watkinson  v.  Laughton,  8  Johns.  R.  164.  Amory  v. 
MGregor,  15  Ibid.  24.     Oakci/  v.  Russell,  18  Martin's  Louis.  R.  62. 

^  Rich  V.  Coe,  Cowper's  R.  637.  Garnham  v.  Bennett,  2  Stra.  816. 
James  v.  Bixby,  11  Mass.  R.  34.  Hussey  v.  CAm^te,  9  East's R.  426.  Mar- 
quand  V.  Well,  16  Johns.  R.  89. 

'  Farrel  v.  M'Clea,  1  Dallas's  R.  393.  Abbot  on  Ship,  part  4,  ch.  4,  sec. 
1,  note  2.     Post,  Part  V,  ch.  1. 

*  Ilusscy  v.  Allen,  6  Mass.  R.  163.  Chapman  v.  Durant,  10  Ibid.  47. 
James  v.  Biiby,  11  Ibid.  34.  Wainwright  v.  Crawford,  3  Yeates's  R.  131, 
4  Dall.  R.  225.  Farrel  v.  WClea,  1  Dallas's  R.  396.  Schemerhorn  v.  Loines, 
7  Johns.  R.311.  Marquand  v.  Webb,  16  Ibid.  89.  Muldon  v.  Whitlock,  1 
Cow.  290.     The  Aurora,  1  Wheaton,  96.     Thorn  v.  Hicks,  7  Cowen,  697. 


MASTER'S  PERSONAL  LIABILITY.  203 

on  which  each  case  must  be  determined  for  itself.  Much 
depends  upon  the  kind  and  object  of  the  contract  and 
the  place  where  it  is  made  ;  and  still  more  upon  the 
party  by  whom  it  is  made. 

Repairs  and  supplies,  whether  in  a  foreign  port  or 
a  home  port,  ordered  by  the  master,  will,  in  general,  be 
presumed   to  be  a  charge  against   him   as   well  as  the 
owner,   because    the  credit  is  given    to   the   master  in 
respect  of  his  contract,   and   to   the  owner,  in  respect 
of  his   being  the   principal  and  the  party  who    derives 
benefit.^     But,   if   ordered    by  the    owner,   the    master 
is  never  liable,  because  his  liability  is  in   respect  of  his 
contract.^     So,  too,  if  it  appears  that  the  master  merely 
acted   as  the  servant  of  the  owners   to  transmit   their 
orders  for  repairs  or  supplies,  it  has   been  held   that  he 
will  not  be  liable.^     But  then  the  capacity  in  which  he 
gave  such  orders  ought  to  be  clearly  and  unequivocally 
distinguishable  from  his  general  official  agency,  to  avail 
him  as  a  defence. 

With  regard  to  the  wages  of  seamen,  it  seems  to  be 
the  opinion  of  some  learned  Jurists,  that  the  mere  fact  of 
their  being  shipped  by  the  owner,  in  the  home  port, 
would  scarcely  furnish  sufficient  ground  for  the  presump- 
tion that  the  contract  was  exclusively  on   the  credit  of 


•  HosJiins  V.  Slayton,  Cas.  temp.  Hardw.  377.  JTiu^sij  v.  Christie,  9 
East's  R.  42G.  liich  v.  Coc,  Cowp.  G3G.  Leonard  v.  Hnntini^ton,  15  Johns. 
R.  298.  Marquand  v.  Wchh,  16  Ibid.  S9.  James  v.  Dixby,  11  Mass.  R.  34. 
Stewart  v.  Jfall,  2  Dow.  20.  1  Bell's  Comm.  sec.  434,  et  scq.  3  Kent's 
Coram.  IGl.  Abbot  on  Shipping,  part  1,  ch.  357,  note  1 ;  part  2,  ch.  3,  sec. 
1,  note  1. 

'  Fnrnur  v.  Davis,  1  T.  R.  JOS. 

*  Iloskms  V.  Slay  Ion,  Cas.  temp.  Ilardw.  377. 


204  MASTER'S  rnUSONAL  LIABILITY. 

tlio  owner.'  And  iin(lon])tcdly  the  ninritinic  law  con- 
tomplatos  that  tlio  seamen  are  to  liave  a  triple  security 
for  i\w\v  wages,  tlie  owner,  the  master,  and  the  ship 
itself,  as  a  general  right.  Still,  the  master's  liability  is 
said  to  be  founded  in  contraet,  and  if  it  can  be  made  to 
appear,  by  clear  and  satisfactory  proof,  that  he  has  made 
no  contract  with  the  seamen  express  or  imi)lied,  he  will 
not  be  liable  to  them.  Thus,  if  the  former  master  dies, 
or  is  removed,  the  master  who  succeeds  will  only  be  lia- 
ble to  the  seamen  for  the  wages  earned  after  his  appoint- 
ment, and  not  for  the  wages  earned  in  the  preceding  part 
of  the  voyage.^  But  the  original  hiring  of  the  seamen 
by  the  owner,  or  by  another  master,  is  far  from  being 
evidence  that  no  contract  arises  on  the  part  of  the  mas- 
ter who  is  sought  to  be  held  liable.  If  he  signs  the  arti- 
cles, which  the  seamen  may  have  previously  signed,  there 
is  a  clear  case  of  contract  f  and  his  succession  to  the 
office  of  master  during  the  voyage  raises  a  presumption 
of  contract  for  the  residue  of  the  voyage  ;*  and  perhaps 
it  might,  under  some  circumstances,  raise  such  a  pre- 
sumption for  the  whole  voyage.^ 

The  master  is  personally  liable  for  his  own  negligences, 
non-feasances  and  mis-feasances.^  He  is  also  liable  for 
those  of  his  officers  and  crew,  though  no  personal  fault  or 

'  Story's  Comm.  on  Agency,  sec.  299,  p.  302.  2  Eraerig.  Dcs  Assur- 
ances, ch.  ^,  sec.  12,  p.  467.  1  Bell's  Comm.  sec.435,  p.  414;  sec.  418, 
p.  398. 

*  Wysham  v.  Rossc7i,  11  Johns.  R.  72. 
3  Maijo  V.  Harding,  G  Mass.  R.  300. 

*  Wysham  v.  Rossen,  ante. 

*  See  post,  Part  V,  ch.  1. 

«  Morse  v.  Slue,  1  Vent.  233;  1  Mod.  R.  85.     Schiefflin  v.  Harvey,  6 
-Johns.  R.  170.     Denison  v.  Seymour,  9  Wendell's  R.  9. 


MASTER'S  PERSONAL  LIABILITY.  205 

negligence  is  imputable  to  him.  The  rigor  of  the  law  in 
this  respect  arises  from  reasons  of  public  policy  ;^  and 
does  not  admit  of  any  distinction  whether  the  officers 
and  crew  are  appointed  by  the  master  himself,  or  by  the 
owner.-  But  the  master  is  not  liable  for  the  wilful  tres- 
passes of  his  crew,  not  done  in  the  course  of  their  duty, 
or  by  his  commands.^ 

1  Morse  v.  Slue,  1  Vent.  238;  1  Mod.  R.  85.  Scliiefflin  v.  Harvey,  6 
Johns.  R.  170,  176.  Walkinson  v.  Laughton,  8  Ibid.  164.  Foot  v.  Wi&wall, 
14  Ibid.  304.  Purviance  v,  Angus,  1  Dall.  184.  Abbot  on  Ship,  part  2, 
ch.  2,  sec.  3;  part  3,  ch.  3,  sec.  3.  Valin,  Comm.  tome  i,  p.  385;  tome  ii, 
p.  161,  162.     Story  on  Agency,  sec.  315,  319. 

*  Foot  V.  Wisicall,  14  Johns.  R.  304.  Denison  v.  Seymour,  9  Wendell's 
R.  8. 

^  Boucher  v.  Noidstrom,  1  Taunt.  R.  568.  Nor  are  the  owners  liable  for 
the  acts  of  the  master  beyond  the  authority  confided  in  him.  Reynolds  v. 
Tappan,  15  Mass.R.  370.  Dias  v.  The  Owners  of  the  Revenge,  3  Wash. 
R.  262. 


CHAPTER  II. 

OF    THE    master's    RELATION    TO    TIIE    CARGO. 

Two  relations  of  the  master  of  a  merchant  vessel  to  the 
cargo  under  his  custody  may  exist  at  the  same  time. 
First,  where  he  is  to  be  viewed  simply  as  master,  with- 
out any  other  powers  or  duties,  in  ordinary  circumstances, 
than  those  of  safe  custody  and  conveyance :  second,  where 
he  is  at  the  same  time  both  master  and  consignee,  or 
supercargo,  with  the  powers  and  duties  of  the  latter  ca- 
pacity superadded  to  those  of  the  former. 

But  when  the  master  is  also  appointed  consignee  of 
the  cargo,  his  acts  in  relation  to  it  are  severally  to  be  re- 
ferred to  the  different  capacities  in  which  he  is  acting.* 
The  general  rule  is,  that  during  the  voyage,  his  acts  are 
to  be  referred  to  his  capacity  as  master  ;  but  after  the 
cargo  has  arrived  at  its  destination,  the  master,  if  he  be 
consignee,  is  to  be  considered  as  acting  in  that  relation 
only.^     This  rule  has  been  clearly  illustrated  by  the  Su- 

*  2  Livcrmore  on  Agency,  215.  Abbot  on  Shipping,  part  2,  ch.  4,  sec.  1, 
n.  1.  1  Bell's  Cora.  p.  413.  3  Kent's  Com.  Lect.  4G.  The  Vrow  Judith, 
1  Rob.  Adra.  R.  150.  The  St.  Nicholas,  1  Wheaton's  R.  417.  Williams  v. 
Nichols  and  Perry,  13  Wend.  R.  58.  Kendrick  v.  Delafield,  2  Caine's  R.  67. 
Un.  Ins.  Co.  v.  Scott,  1  Johns.  R.  106. 

'^  2  Livcrmore  on  Agency,  215.  Williams  v.  Nichols  and  Perry,  13  Wend. 
R.  58.  Un.  Ins.  Co.  v.  Scott,  1  Johns.  R.  106.  Earle  v.  Rowcroft,  8  East's 
R.  126. 


MASTER'S  RELATION  TO  THE  CARGO.  207 

preme  Court  of  the  State  of  New  York.  Where,  they 
say,  the  master  of  a  vessel  in  which  goods  are  shipped  is 
the  consignee  of  the  cargo,  he  stands  in  the  relation  of 
agent  to  two  distinct  principals  ;  in  the  stowage  of  the 
cargo,  its  safe  custody  and  delivery,  he  is  the  agent  of  the 
ship-owner  ;  but  in  its  sale,  and  in  accounting  for  its  pro- 
ceeds, he  is  the  agent  of  the  consignor  ;  and  in  such  case, 
where  the  owner  receives  only  the  freight,  and  the  mas- 
ter commissions  upon  the  sales,  and  the  master  neglects 
to  account  for  the  proceeds,  an  action  will  not  lie  against 
the  owner  for  such  neglect.^  But  the  capacity  in  which 
the  master  is  to  be  considered  as  acting,  is  not  always  to 
be  determined  by  the  place  where  the  act  is  done,  but 
may  depend  in  some  degree  upon  the  act  itself.  Thus, 
where  the  master,  who  was  also  consignee,  having  arrived 
at  one  port  of  destination,  carried  on  shore  and  absconded 
with  a  part  of  tiie  cargo,  the  same  court  held  that  the 
barratrous  act  could  not  be  referred  to  his  character  of 
consignee  ;  but  that  the  taking  the  goods  on  shore  with 
the  fraudulent  intent  to  convert  them  to  his  own  use,  was 
a  criminal  breach  of  his  duty  as  master  of  the  vessel,  and 
properly  imputable  to  him  as  master." 

'  Williams  V.  Nichols  and  Perry,  13  Wend.  R.  5S.  This  case  is  distin- 
guishable from  thai  of  Kemp  v.  Coughtri/,  (11  Joiins.  R.  107,)  where  the 
ship-owner  was  held  liable  for  the  proceeds  of  cargo  sold  by  the  master, 
in  that  ii  was  proved  to  be  tiie  usage  in  the  particular  trade  to  consign 
goods  to  the  master  for  sale,  and  the  freigiu  which  was  received  by  the 
owners  covered  the  whole  compensation  paid  for  the  carriage  and  sale  of 
the  goods. 

*  Cooke  V.  Com.  Ins.  Co.,  11  Johns.  R.  40.  So  too,  the  distinction  of  the 
capacity  in  which  the  master  is  acting  may  be  further  illustrated  by  the  lien 
that  is  sometimes  created  on  the  vessel  by  his  acts.  Shippers  have  such  a 
lien  for  the  execution  of  the  contract  of  a  bill  of  lading  ;  but  liien  it  is  only 
those  contracts  which  the  master  enters  into  in  his  quality  as  master,  that 


208  MASTKR   WAUKA.NTS  THE  FITNESS  OK  THE   lillir. 

But  oidiiiaiily  and  in  his  general  oflicial  capacity,  the 
master  is  a  stranger  to  the  cargo,  beyond  the  purposes  of 
safe  custody  and  conveyance.'  His  rights  and  duties, 
therefore,  in  this  simple  relation  of  master  are  first  to  be 
considered,  and  then  the  further  powers  with  which  he 
becomes  invested  by  the  general  policy  of  the  law,  in 
particular  emergencies. 

The  first  duty  of  the  master  who  receives  on  board 
goods  to  be  carried  for  freight,  is  to  see  that  his  vessel  is 
tight,  stanch  and  fitted  in  all  respects  for  the  purpose  of 
carrying  those  goods  to  the  place  to  which  he  undertakes 
to  carry  them.~  There  seems  to  have  been  some  dif- 
ference of  opinion  among  eminent  French  writers  on  the 
maritime  law,  whether  the  master  and  owner  are  respon- 
sible to  shippers  for  latent  defects  in  the  vessel,  which 
were  unknown  to  them  at  the  time  of  sailing.^  But  the 
law  of  England,  which  holds  the  master  and  owner  re- 
sponsible, as  common  carriers,  against  all  events  but  acts 
of  Providence  or  the  public  enemy,  admits  of  no  distinc- 
tion between  such  defects  as  are  latent  and  such  as  are 


specifically  bind  the  ship  and  affect  it  with  a  lien  or  privilege  in  favor  of 
the  creditor.     See  The  Paragon,  Ware's  R.  322.     The  Phoebe,  Ibid.  263. 

»  The  Gratititdine,  3  Rob.  Adm.  R.  255.  Ross  v.  Ship  Active,  2  Wash. 
R.  226.  Searle  v.  Scovell,  4  Johns.  Ch.  R.  222.  Douglass  v.  Moody,  9 
Mass.  R.  548. 

'  The  rule  of  the  French  Ordinance  was,  that  if  the  merchant  can  prove 
that  when  the  vessel  sailed  it  was  unfit  to  perform  the  voyage,  the  master 
shall  lose  his  freight  and  pay  the  merchant  his  damages  and  interest.  Z/'  Ord. 
de  la  Marine,  liv.  3,  tit.  1,  art.  12.     See  also  liv.  2,  tit.  1,  art.  8. 

^  Valin  is  of  opinion  that  it  makes  no  difference  whether  the  defects  are 
known  or  unknown,  latent  or  patent.  (Com.  tome  i,  p.  653,  654.)  Pothier 
thinks  that  if  the  vessel  has  been  surveyed,  (a  custom  in  France,)  and  the 
surveyors  report  no  defects,  the  master  and  owner  are  not  responsible  for 
defects  which  were  not  discovered.     Traiti  Chart.  Part.  n.  30. 


MASTER  AjN^D  OWNER  ARE  COMMON  CARRIERS.  209 

known   or    discoverable.     The    master    and   owner   are 
bound  to  provide  equally  against  them  all. 

In  the  language  of  Lord  EUenborough,  "  it  is  a  term  of 
the  contract  on  the  part  of  the  owner  implied  by  law,  that 
his  vessel  is  tight  and  fit  for  the  purpose  or  employment 
for  which  he  offers  and  holds  it  forth  to  the  public  ;  it  is 
the  very  foundation  and  immediate  substratum  of  the  con- 
tract that  it  is  so :  the  law  presumes  a  promise  to  that 
effect  on  the  part  of  the  carrier  without  any  actual  proof; 
and  every  reason  of  somid  policy  and  public  convenience 
require  that  it  should  be  so."  ^  The  same  doctrine  has 
been  well  settled  in  our  own  courts  ;^  and  it  flows  directly 
from  the  position  that  the  master  and  owner  of  a  general 
freighting  ship  are  common  carriers.^     So  too  it  is  the 


1  Lyon  V.  Mclls,  5  East's  R.  428. 

*  Putnam  v.  Wood,  3  Mass.  R.  481.  Bell  v.  Read,  4  Binn.  R.  127. 
Kimhall  V.  Tucker,  10  Mass.  R.  192.  Goodridge  v.  Lord,  Ibid.  483. 
Elliolt  vs  Rossf.ll,  10  Johns.  R.  1.  Richards  v.  Gilbert,  5  Day's  R.  415. 
Emery  v.  Henry,  4  Grcciil.  R.  407.  M'Clure  v.  Hammond,  1  Bay.  R.  99. 
Harrington  v.  Lyles,  2  Nolt  and  M'Cord,  R.  88. 

'  The  Supreme  Court  of  the  State  of  New  York  have  held  that  the  mas- 
ter and  owners  of  a  vessel  bringing  goods  from  New  Orleans  to  New  York 
arc  not  common  carriers.  Aymar  v.  Aslor,  (6  Cowen's  R.  2GG.)  This 
decision  stands  opposed  to  the  uniform  current  of  decisions  in  the  other 
States,  and  to  the  previous  cases  of  Elliott  v.  Rossell,  (10  Johns.  R.  1),  and 
Kemp  v.  Coughlry,  (11  Ibid.  107),  in  the  same  Court.  In  truth,  the  princi- 
ple of  holding  the  master  and  owners  liable  for  all  losses  except  such  as 
arise  from  acts  of  Providence  or  tlie  public  enemy,  is  not  peculiar  to  the 
common  law  of  England.  What  alone  seems  to  be  at  all  peculiar  to  that 
law  is  the  form  in  which  the  liability  is  commonly  expressed.  There  is 
the  same  liability  by  the  general  maritime  law  of  Continental  Europe. 
Conxolalo  dd  Marr,  chap.  13,  |5S|,  70,  ( 115J,  20,  [G5],  21,  [00],  22,  [07],  Par- 
dessus,  tome  ii.  L'Ord.  de  la  Marinr,  liv.  2,  lit.  1,  art.  9.  Code  de  Coin' 
mrrcr,  art.  230.  Enicrigon,  tome  i,  p.  377.  Valin,  Comrn.  tornc  i,  p.  394. 
Roccus,  N.  40,  50,  56.  Jacobsen's  Sea  Laws,  by  Frick,  B.  2,  cli.  1.  In- 
deed  the  Consolalo  ex|)resses  the  exceptions  from  the  Ubu.ii  liability  in 

27 


210  MASTER  BOUKD  TO  TAKF,  A    riI,OT,  ETC. 

duty  of  the  master  to  keop  tlio  vessel  in  complete  repair, 
by  making  good  at  the  first  convenient  })ort  all  injuries 
she  mav  have  sustained  dining  the  voyage  ;  for  the  con- 
tract is  tiiat  the  goods  shall  be  transported  to  the  place 
of  destination.'  So  imperative  is  this  duty,  that  the  mas- 
ter is  allowed  by  law,  if  he  cannot  otherwise  procure  the 
means,  to  hypothecate  the  cargo,  for  the  purpose  of  put- 
ting the  vessel  into  a  condition  to  perform  the  contract  of 
transportation.^ 

The  master  is  also  bound  to  sec  that  the  crew  arc 
sufficient  in  point  of  numbers,  skill  and  efficiency,  for 
the  contemplated  voyage.  We  have  already  seen  that 
both  the  master  and  the  ship-owner  are  responsible  for 
the  conduct  of  the  entire  crew.^  So  too,  the  master  is 
])y  the  general  maritime  law  bound  to  take  a  pilot, 
wherever  the  usage,  or  the  laws  of  the  country  require 
it."^  It  is  always  a  want  of  due  diligence  in  a  master 
not  to  take  a  pilot,  in  places  where  it  would  have  been 
negligence  in  the  pilot,  if  taken  on  board,  not  to  have 
avoided  the  difficulties  of  the  navigation.^  It  has  been 
held  in  New  York  to  be  the  rule  of  the  master's  duty, 

nearly  the  same  formula  as  that  of  the  common  law ;  "  E  fon  fet  perch  a 
quest  Capitol :  car  a  empediment  de  Deu  ne  de  mar  ne  de  vent  ne  de  senyoria, 
negii  no  pot  res  dir  ni  conirasiar."  "  Wherefore  it  is  that  this  chapter  has 
been  made ;  for  the  restraint  of  God,  the  sea,  the  weather,  or  foreign 
princes,  no  one  can  gainsay  or  resist."  Chap.  20,  [65],  Pard.  tome  ii.  p.  73. 
'  And  this  is  true,  whether  the  vessel  be  let  by  charter-party,  or  be  a 
general  ship.     See  the  cases  cited  last  page,  note  2. 

*  The  Gralitudinc,  3  Rob.  Adm.  R.  140,  255. 
=>  Ante,  p.  204. 

*  Abbot  on  .Sliipping,  part  3,  ch.  2,  p.  222,  ^and  notes.     Ibid,  part  2,  eh. 
5,  p.  161,  and  notes. 

*  The   William,  G  Rob.  Adra.  R.  31G.     See  also  Law  v.  Hollingwortk, 
7  T.  R.  156.     PhilUps  V.  Ihadlum,  2  B.  ^  A.  380. 


MASTER'S  DUTIES  IN  LADING.  211 

that  in  everj  well  appointed  port,  where  pilots  are  to  be 
had,  a  vessel  arriving  upon  pilot  ground  is  bound  to  take 
a  pilot,  and  the  ground  is  to  be  approached  carefully  ; 
and  in  the  night  the  master  is  to  hold  out  a  light  for  a~ 
pilot,  and  to  wait  a  reasonable  time  for  one,  and  to 
approach  one  if  he  can  do  it  with  safety.^ 

Followins  the  course  of  the  master's  duties  in  what 
may  be  called  their  historical  order,  we  may  suppose  the 
contract  by  which  he,  or  the  owner,  engages  to  carry  the 
goods  of  another,  to  have  been  made.  This  may  be 
done  first,  by  a  chartering  of  the  vessel,  which,  as  we 
have  seen,  is  ordinarily  done  by  the  owner  himself; 
secondly,  by  signing  bills  of  lading,  which  may  always  be 
done  by  the  master  of  a  general  freighting  ship,  and 
commonly  is  done  by  him  only ;  thirdbj,  by  receiving 
goods  on  board  without  any  written  contract,  in  which 
case  the  master  engages  to  carry  them  under  all  the  re- 
sponsibilities imposed  upon  him  by  the  general  law, 
without  the  further  exceptions  which  are  usually  inserted 
in  charter-parties  and  bills  of  lading.  The  general  duties 
and  responsibilities  of  the  master,  which  are  the  same  in 
all  these  cases,  are  now  to  be  stated,  and  also  how  far 
they  are  restrained  by  the  peculiar  features  of  each 
contract. 

1.  In  respect  to  tlu;  reception  of  the  goods  into  the 
shi]).  \Vh(;t]K;r  iIk;  ship  be  let  by  charter-party,  or  the 
contract  be  by  bill  of  lading,  or  l)y  the  mere  undertaking 
as  a  common  carrier,  without  any  written  contract,  and 
whether  the  lading  be  performed   by  the  ship|)er  himself 

'  Jjollon  rt  al.  v.  Am.  Iiix.  Co.,  Superior  Court  of  New  York,  before 
Ch.  J.  Jones,  November,  1835,  oiled  3  Kent's  Cum.  I7G,  note  (c).  Edition 
1840. 


212  MASTKR  IJOliM)  TO  CAURY   UJSDEll   DKCK. 

or  by  the  master,  it  is  alike  in  all  cases  the  master's  duty 
to  provide  all  the  usual  ropi^s  and  ri2;i!;ing  fit  for  the 
ladiiii;-  of  the  cargo.  If  hy  any  defect  in  the  usual 
ecjuipment  of  ships  for  this  purpose,  any  damage  hap- 
pens to  the  goods,  tiie  master  and  owner  would  be 
responsible.^ 

2.  In  respect  to  the  stowage  of  the  goods.  It  is 
always  the  duty  of  the  master  to  stow  the  goods  under 
deck,  unless  by  the  contract  he  has  expressly  reserved  a 
power  to  carry  them  on  deck,  or  unless  he  can  show,  in 
the  absence  of  a  written  contract,  a  usage  in  the  particu- 
lar trade  to  carry  goods  on  deck,  so  generally  known  and 
recognised,  that  it  may  be  presumed  to  liave  been  within 
the  contemplation  of  the  parties  at  the  time  of  the  ship- 
ment. The  authorities  of  the  maritime  law  are  unani- 
mous upon  this  point."  The  French  Ordinance,  and 
after  it,  the  Code  Napoleon  expressly  prohibit  the  master 
from  lading  goods  on  deck,  except  in  a  particular  trade, 
called  navigation  au  petit  cabotage,  which  is  carried  on 
in  a  class  of  vessels  usually  without  decks.^  This  is 
the  only  exception  in  the  French  law  within  which  the 
master  can  bring  himself,  to  avoid  his  general  responsi- 
bility.    With  us,  if  there  be  what  is  commonly  called  a 

'  Lois  D'Oleron,  art.  10,  Pard.  i,  p.  330.  Droit  Mar.  de  Wi'sJwy,  art. 
25,  Ibid.  p.  478.  Abbot  on  Ship,  part  3,  ch.  3,  p.  224.  Gojfv.  Clinkard, 
cited  1  Wils.  2S2.     Wilson  v.  The  Deh-iderc,  Pet.  Adm.  R.  258. 

^  Consolato  del  Marc,  ch.  141,  [186.]  Pard.  ii,  p.  155.  V  Ord.  de  la  Marine, 
liv.  2,  tit.  1,  art.  12.  Code  de  Commerce,  art.  229.  Valin,  Comm.  tome  i, 
p.  397.  Abbot  on  Ship,  part  3,  eh.  8,  sec.  13,  p.  355.  The  Schooner  Reeside, 
2  Sumner's  R.  567.  The  Paragon,  Ware's  R.  322.  The  Rebecca,  Ibid. 
188.  Barlol  v.  Dodge,  5  Greenl.  R.  286.  Gould  v.  Oliver,  4  Bingh.  N.  C. 
134.  Smith  V.  Wright,  1  Caine's  R.  43.  Lennox  v.  Un.  Ins.  Co.,  3  Johns. 
Cas.  178.     Barber  v.  Bruce,  3  Conn.  R.  9. 

*  UOrd.  dc  la  Marine,  Code  de  Commerce,  and  Valin,  ul  supra. 


MASTER  RESPONSIBLE  FOR  BAD  STOWAGE.  213 

clean  bill  of  lading,  that  is,  one  in  the  common  form 
en^agins;  to  deliver  the  goods  in  good  order  and  condi- 
tion, the  dangers  of  the  seas  only  excepted,  or  a  charter- 
party  in  the  like  form,  the  law  presumes  that  the  goods 
are  to  be  carried  under  deck  ;  such  is  the  meaning  of  the 
contract ;  and  no  usage  can  be  permitted  to  control, 
vary  or  contradict  that  meaning.'  If  the  contract  be  by 
parol,  still  the  presumption  is  that  the  goods  were  intend- 
ed by  the  shipper  to  be  sent  under  deck,  for  that  is  the 
general  law  ;  but  it  seems  that  it  would  be  competent  to 
the  master  to  show  a  local  custom  to  carry  goods  on  deck 
in  the  particular  trade  so  generally  known  and  recognised, 
that  a  fair  presumption  arises  that  the  parties,  in  entering 
into  their  engagement,  did  it  with  a  silent  reference  to 
the  custom,  and  tacitly  agreed  that  their  rights  and 
res])onsil)ilities  should  be  determined  by  it.- 

The  master  is  in  like  manner  responsible  for  the  proper 
stowage  of  the  goods  on  board,  so  that  no  injury  may 
happen  to  them  by  the  motion  or  leakage  of  the  ship.^ 
Bad  stowage  may  be  either  from  an  improper  and  dc- 

'  The  Schooner  Rceside,  2  Sumner's  R  5G7.  The  Paragon,  Ware's  R. 
322.  Vemard  v.  Hudson  3  Sumner's  R.  405.  Ikit  the  presumption  may- 
be rebutted  by  showing  a  positive  agreement  that  the  goods  are  to  be  car- 
ried on  deck  ;  or  it  may  be  deduced  from  other  circumstances,  such  as  the 
goods  paying  the  deck  freight  only.  This  proof  would  be  consistent  with 
the  rules  of  law,  for  it  neither  contradicts  nor  varies  the  bill  of  lading;  but 
simply  rebuts  a  presumption  arising  from  the  ordinary  course  of  business. 
Verriard  V.  Hudson.  Where  goods  were  shipped  under  the  common  bill  of 
lading,  at  an  under-dcck  freight,  but  were  carried  on  deck,  and  finally  de- 
livered safe,  held  that  the  ship-owner  was  only  entitled  to  a  deck  freight. 
Ibid. 

•  The  Paragon,  ut  supra. 

*  Droit  Mar.  dc  Wtshuy,  art.  25.  Pard.  1,  p.  47S.  Lois  D'Oleron,nn.  11. 
2  Magens,  p.  IG,  art.  8.     Emerigon.ch.  12,  sec.  42. 


214  LllAUTEULK  Al'rOINTING   HIS  OWN   STOWER. 

fectivf  iuraiiiitMiu'iit,  so  that  the  goods  arc  damaj^cd  by 
contart  or  li\  the  Icakajic  of  the  vessel  ;  or  Irom  taking 
on  hoard  goods  juicked  or  coopered  iinj)ro})erly,  such  as 
oil  or  \itriol,  whereby  other  goods  arc  injured,  through  a 
leakage  of  the  casks,  occasioned  by  any  stress  of  weather 
that  is  not  fairly  within  the  meaning  of  "  perils  of  the 
seas."^  These  defects  the  master  undertakes  by  his 
contract,  whether  written  or  verbal,  to  j)rovide  against ; 
and  the  meaning  of  the  exception,  "  perils  of  the  seas," 
which  is  ordinarily  introduced  into  bills  of  lading,  and 
which  the  law  implies,  in  the  absence  of  a  written  con- 
tract, includes  only  those  injuries  occasioned  by  some 
irresistible  force,  or  some  overwhelming  power,  which 
cannot  be  guarded  against  by  the  ordinary  exertions  of 
human  skill  and  prudence.^ 

The  question  next  recurs,  whether  the  master's  duties 
in  the  stowing  of  the  cargo,  are  varied  by  the  fact  that 
the  ship  is  taken  by  charter-party,  and  the  charterer 
appoints  his  own  stower.  Lord  Tenterden  states  it  as 
the  general  duty  of  the  master,  to  attend  to  the  stowing, 
"  unless,"  he  says,  "  by  usage  or  agreement,  this  business 
is  to  be  performed  by  persons  hired  by  the  merchant."^ 
Since  that  text  was  written,  it  has  been  held  in  England, 
that  the  master  is  prima  facie  liable  for  the  safe  stowage 
of  the  cargo,  but  he  is  exonerated  by  the  special  aj)})oint- 
ment  of  his  own   stower  by  the  freighter ;    and  if  the 


'   The  Schooner  Rceside,  2  Sumner's  R.  567. 

*  Ibid.  Abbot  on  Shipping,  part  3,  ch.  4,  sec.  1.  3  Kent's  Comrn.  Lee. 
47,  p.  216. 

^  Abbot  on  Shipping,  part  3,  ch.  3,  sec.  3,  p.  224.  lie  cites,  Wclwood, 
p.  29.  2  Magens,  p.  10,  art.  8.  French  Ord.  liv.  2,  tit.  1,  art.  12.  Laws 
of  Wisbuy,  art.  23.     Laws  of  Oleron,  art.  11,  and  Cleirac  thereon. 


MASTER  NOT  TO  SAIL  IN  BAD  WEATHER.  215 


freighter,  by  a  verbal  agreement  with  the  owner,  undertakes 
to  appoint  his  own  stower,  and  he  acts  as  such,  the  mere 
silence  of  a  charter-party,  subsequently  entered  into,  does 
not  subject  the  master  to  his  original  liability.'  So  too, 
it  seems  that  if  the  shipper  of  goods  is  warned  as  to  the 
way  in  which  they  ^y\\\  be  stowed,  the  consignee  cannot 
maintain  any  action  for  damage  occasioned  by  bad 
stowage.^ 

3.  In  respect  to  setting  sail. 

There  is  good  authority  in  the  maritime  law,  for  the 
position  that  the  master  is  bound  not  to  sail  out  in  tem- 
pestuous weather,  though  the  point  has  not  been  directly 
adjudicated  in  this  country,  or  in  England,  The  laws  of 
Oknon,  of  AVestcai)elle,  and  of  Wisbuy  expressly  make 
him  Hable  for  any  damage  ha})poning  to  the  cargo  in 
consccpicnce  of  sailing  in  bad  weather.^  It  is  true  that 
they  held  him  justified  by  the  advice  of  a  majority  of  his 
crew,  which  he  was  obliged  to  take  and  to  follow.  This 
wc  have  seen  is  not  the  law  of  this  country,  the  master 
being  solely  responsil)le  for  the  government  and  direction 
of  the  ship.^     But  although  this  justification  is  by  our  law 

'  Swainslonv.  Garrick,  Exchq.  Trin.  T.  1833.  Law  Journal,  vol.  11, n.  s. 
vol.  2,  p.  255.  Lord  Lynilhurst,  C.  B.  is  reported  to  have  saitl,  "  The  master, 
as  servant  of  tlir  owner,  is  hound  to  superintend  the  stowage, and  if  incon- 
sequence of  improper  stowage  the  owner  hasheen  called  upon,  and  has  sat- 
isfied any  claim  for  damage,  the  master  is  lialilc  U)  him.  But  wlicre  the 
master  is  told  by  the  owner  that  some  one  will  come  to  superintend  and 
do  that  which  would  otherwise  he  his  duty,  he  is  exonerated.  If  after- 
wards that  intention  is  changed,  the  owner  should  communicate  it  to  the 
master." 

*  Mnjor  V.  Whilr,  7  Car.  &  P.  41 . 

'  J^is  lyOleron,  art.  2,  Pard.  1,  p.  324.  Lois  De  Weslrnprlh;  Jufrrincnt 
2.    Ihid.  p.  371.      Drmt  Mar.  dv  Wishmj,  nvt.  in.      Ihid.  p.  '171. 

♦  Ante  Tart  ii,  ch.  1,  p.  Sl,82,  R3. 


216       MASTF.K  BOUND  TO  CAHUY  GOODS  SAFELY. 

takiMi  awnv,  the  force  of  llie  responsilfility  remains,  and 
remains  \\  liollv  willi  ihe  master.  Lord  'J'enterden  a(l()[)ts 
the  rule  upon  tiie  antiiorilies  eited;'  and  tliere  is  an  old 
case  from  uliieh  he  mii^ht  have  (hawn  a  pertinent  analo^ry, 
to  tlie  effect  tliat  if  a  l)ar<>e-master  undertakes  to  shoot  a 
bridge  at  a  })roper  time,  and  is  driven  by  a  sudden  i^ust 
or  current  against  a  pier,  the  loss  so  happening,  would  be 
excusable  as  a  mere  casualty ;  but  if  he  rashly  undertook 
to  shoot  the  bridge  when  the  bent  of  the  weather  was 
tempestuous,  he  would  be  chargeable  on  account  of  his 
temerity  and  imprudence. " 

4.  Care  of  cargo  on  the  voyage. 

A  .  promise  to  carry  the  cargo,  whether  written  or 
verbal,  im])lies  a  promise  to  keep  it  safely  on  the  voyage  ; 
and  accordingly  the  master  is  bound  to  take  the  utmost 
care  of  the  goods,  varying  his  care  and  watchfulness  with 
the  nature  and  quality  of  the  cargo.^  He  shoidd  cause 
the  goods  to  be  ])roperly  ventilated  if  they  require  it.^ 
As  we  have  already  seen,  he  is  bound  to  take  the  usual 
precautions  against  a  destruction  of  the  goods  by  rats,  or 
by  a  leakage  occasioned  by  rats,  by  having  a  cat  on 
board ;  and  if  this  precaution  is  neglected,  he  will  be 
responsible  for  the  loss  so  occasioned,  as  it  will  not  then 
be  deemed  to  have  been  caused  by  a  peril  of  the  sea,  or 


'  Abbot  on  Shipping,  part  3,  ch.  3,  sec.  5,  p.  226. 

*  Armies  v.  Stevens,  1  Strange,  128.     See  also  Jones's  Bailin.  107. 

^  Consolalo  del  Marc,  ch.  19,  [G4],  20,  [65],  21,  [06],  Pard.  tome  ii,p.  72, 
73.  Emerigon,  tome  i,  p.  377.  3  Kent's  Comm.  213.  Hunter  v.  Potts,  4 
Camp.R.  203.  Dale  v.  Hall,  1  Wils.  281.  Davidson  v.  Gwynnc,  12  East's 
R.  3S1.  Siordet  v.  Hall,  4  Bingli.  R.  G07.  Garrigues  v.  Coxe,  1  Binn. 
R,  592. 

■*  Davidson  v.  Gwynne,  12  East's  R.  3S1. 


CONSTRUCTION  OF  THE  BILL  OF  LADING.  217 

an  inevitable  casualty.^  In  like  manner,  the  master  is 
lx)und  to  prevent  thefts  and  embezzlements  by  the  crew, 
and  by  all  other  persons,  and  he  is  personally  liable  there- 
for, as  well  as  for  all  injuries  to  the  cargo  arising  from  the 
negligence  or  misfeasance  of  the  crew,"  whether  they  are 
appointed  by  the  owner,  or  by  himself.^ 

In  cases  of  general  average,  the  master  has  a  right  to 
retain  the  goods  of  shippers  until  their  proper  share  of 
contribution  towards  the  general  average  is  paid  or 
secured.^  And  his  lien  in  such  cases  exists  upon 
goods  shipped  by  government,  as  well  as  by  private 
persons.^ 

5.  Construction  of  the  exceptions  in  the  bill  of 
lading. 

A  bill  of  lading  is  a  document  subscribed  by  masters 
of  vessels,  acknowledging  to  have  received  the  goods 
therein  specified  on  board  their  vessels,  and  engaging  to 
deliver  them  in  the  same  condition  at  the  place  and  to 
the  persons  to  whom  consigned,  upon  the  payment  of  the 
freight  agreed  upon.  In  America,  the  common  form  of 
the  bill  of  lading  contains  no  other  saving  clause  than 

'  Ante  Tart  III,  ch.  1,  p.  197,  198,  Consolato  del  Marc,  ch.  22,  [67],  23, 
[08],  Pard.  tome  ii,  p.  75.  Emeritrnn,  tome  i,  p.  377,  378.  Marsh,  on  Ins. 
hook  1,  ch.  7,  sec.  4.  Dak  v.  Hull,  1  Wils.  281.  Garrigws  v.  Coxc,  1 
Binn.  R.  592. 

*  Abbot  on  Shipping,  part  3,  ch.  3,  sec.  3,  9.  Morse  v.  Slur,  1  Vent.  238. 
Sc/itrjfltn  V.  Jffirrn/,  6  Johns.  R.  170,  176.  Walkison  V.  Laughton,  8  Ibid, 
164.     Foot  V.  Wmrall,  14  Ibid.  304. 

^  Drmsnn  Snjmour,0  Wend.  II.  8. 

*  Abbot  on  Sliipping,  pari  3,  ch.  8,  5cc.  17.  Simonds  v.  While,  2  B.  and 
C.  805.  Scaife  v.  Tohm,  3  B.  and  A.  523.  The  Uoffnung:,  6  Rob.  Adm.  R. 
383,  Stevens  on  Average,  p.  50.  United  Stales  v.  Wilder^  3  Sumner's  R. 
308. 

*  United  States  v.  Wilder,  supra. 

28 


218  PERILS  01"  THE  SEAS. 

"  the  danger  of  the  seas  only  excepted,"  and  a  proviso 
that  the  consignees  sliall  pay  tlie  freiglit.' 

Dangers  of  the  seas,  or  perils  of  the  seas,  have  been 
dcfnied  to  inchuk;  tliosc  injiirii^s  occasioned  by  some  irre- 
sistible force,  or  some  overwhelming  power,  which  can- 
not be  guarded  against  by  the  ordinary  exertions  of  human 
skill  and  prudence.-     AVhat  are  such  perils,  within  the 


'  Tlie  following  is  the  common  form  in  use  in  this  port : 

Shipped,  in  good  order  and  condition,  by 
on  board  the  good  called  the  whereof 

is  master,  for  the  present  voyage,  now  lying  in  the 
Port  of  Boston,  and  bound  for  To  say : 


being  marked  and  numbered  as  in  the  margin,  and  are  to  be  delivered  in 
like  good  order  and  condition,  at  the  aforesaid  port  of  (the  dan- 

ger of  the  seas  only  excepted)  unto  or  to  assigns, 

he  or  they  paying  freight  for  the  said  goods 


■with  primage  and  average  accustomed. 

In  witness  whereof,  the  master  of  the  said  vessel  hath  affirmed  to 
Bills  of  Lading,  all  of  this  tenor  and  dale  ;  one  of  which  being  accom- 
plished, the  others  to  stand  void. 

Dated  at  Boston,  this  day  of  18 

In  England,  the  saving  clause  has  for  quite  a  long  time  been  in  these 
words  :  "  the  act  of  God,  the  kmg's  enemies,  fire  and  all  and  every  other  dan- 
gers and  accidents  of  the  seas,  rivers  and  navigation,  of  ivhatever  nature  and 
kind  soever  excepted,  save  risk  of  boats  so  far  as  ships  are  liable  thereto.'"  In 
bills  of  lading  for  goods  shipped  on  board  steam  vessels,  in  England,  the 
saving  clause  is  in  these  words  :  "  the  act  of  God,  the  hinges  enemies,  fire, 
machinery,  boilers,  steam  and  all  and  every  other  dangers  and  accidents  of  the 
seas,  rivers  and  steam  navigation,  of  wliatever  nature  and  kind  soever  ex- 
cepted." 

^   The  Reeside,  2  Sumner's  R.  567.    Abbot  on  Shipping,  part  3,  oh.  4, 
sec.  1.     3  Kent's  Com.  Lect.  47. 


PERILS  OF  THE  SEAS.  219 

definition,  is  often  a  difficult  question,  and  always  rather 
a  question  of  fact  than  of  law.  Losses  occasioned  by 
rats,  when  proper  precautions  have  been  taken  against 
them;^  by  collision  with  other  vessels,  when  no  negli- 
gence is  imputable  to  the  vessel  injured  ;~  by  the  dangers 
of  the  navigation,  when  due  precautions  have  been  taken 
by  having  a  pilot  ;^  by  sunken  rocks  or  shallows  not 
generally  known,  and  where  the  vessel  is  forced  upon 
them  by  adverse  winds  and  tempests;"*  by  accidental  ob- 
structions not  visible,  or  alterations  in  the  natural  features 
of  a  place  not  known,  and  therefore  not  to  be  avoided  ;^ 
by  an  extraordinary  press  of  sail,  in  order  to  keep  up  with 
a  ship  of  war  that  had  taken  the  vessel  in  tow  ;*'  by  the 
impressment  of  the  crew  ;'  by  a  jettison,  to  prevent  the 
vessel  from  foundering,^  unless  it  had  been  overloaded:* 
these  hav^e  all  been  deemed  perils  of  the  sea,  and  it  is  not 
important  that  a  stronger  vessel  might  have  oudived  the 
exposure,  if  the  vessel  lost  or  injured  was  reasonably  suf- 


'  Anlc,  p.  216,  n.  I.  But  a  loss  occasioned  by  the  destruction  of  the  ship's 
bottom  by  worms  has  been  held  not  to  be  by  a  peril  of  the  sea,  upon  the 
ground  that  it  is  by  ordinary  wear  and  decay.  Pai-Jc  on  Tus.  ch.  3.  Rohl  v. 
Pftrr,  1  Esp.  444.     Martin  v.  Sahm  Ins.  Co.,  2  Mass,  R.  420. 

=*  Bu'lrr  V.  Fisher,  3  Esp.  R.  67.  Smith  v.  Scott,  4  Taunt.  R.  126.  Ab- 
bot on  Shipping,  part  3,  ch.  4,  sec.  2,  5. 

»  The  William,  6  Rob.  Adm.  R.  316.    Cost  v.  M'Mechan,  6  Johns.  R.  160. 

*  Abbot  on  Shipping,  part  3,  ch.4,sec.  6.  Elliot  v.  Rossel,  10  Jolms.  R.  1. 
Kemp  V.  Coughtry,  11  Ibid.  107. 

*  Ilahn  V.  Corbctt,  2  Ring.  R.  205.  Abbot  on  Shipping,  part  3,  ch.  4, 
sec.  1,  5,  6,  9. 

'  Ilngi'dorn  v.  Whitmore,  1  Stark.  157. 

''  Hodgson  V.  Mulcom,  5  Bos.  and  Pul.  336. 

»  Bird  V.  Astcoch,  2  Bulst.  280.     1  Caine's  R.  43.     3  Conn.  R.  9. 

*  2  Ld.  Raymond,  909,  911. 


220  BURTHEN  OF  PROOF  IS  ON  TIIK  MASTER. 

ficient  for  the  voyage'  Losses  by  pirates,  who  arc 
deemed  enemies  of  the  human  race,  have  also  been  in- 
cluded within  the  exception  of  perils  of  the  sea."  So 
too,  a  loss  by  lightning  is  a  peril  of  the  sea;^  but  a  loss 
by  fire,  jMoceeding  from  any  other  cause,  is  not."* 

The  burthen  of  proof  is  always  upon  the  master,  to 
bring  himself  within  some  One  of  the  foregoing  grounds 
of  exception  to  his  liability;'^  and  where  the  case  does 
not  preclude  the  idea  of  negligence,  as  affecting  the  ques- 
tion, (such  as  a  loss  by  lightning,)  if  it  should  appear  that 
he  had  not  used  the  proper  diligence  incumbent  on  him, 
namely,  the  highest  degree  of  diligence,®  he  would  be 
liable.  Thus,  if  his  defence  were  that  he  had  been  rob- 
bed of  the  goods  by  pirates,  it  would  fail  in  case  it  ap- 
peared that  the  ship  fell  into  the  hands  of  the  pirates  by 
any  fault  or  negligence  of  his  own,  or,  what  is  the  same, 
of  the  crew.^  But  whether  the  master,  when  he  has 
shown  that  the  loss  happened  within  some  one  of  the 
recognised  casus  fortuiti,  or  perils  of  the  sea,  is  bound 
also  to  show  affirmatively  that  no  negligence  of  his  own 
accompanied  or  blended  with  the  accident,  perhaps, 
admits  of  some  doubt.     By  the  civil  and  maritime  law,  it 


^  Armies  V.  Stn-rns,  1  Stra.  128.    Abbot  on  Shipping,  part  3,  ch.  4,  sec.  7. 

*  Abbot  on  Shipping,  part  3,  ch.  4,  sec.  2,  3.     United  Stales  v.  Smith,  5 
Wheat.  R.  153. 

^  Abbot  on  Shipping,  part  3,  ch.  4,  sec.  8. 
«  Forward  v.  Pittard,  1  T.  R.  27. 

»  Ibid.  27,  33.     Bell  v.  Read,  4  Binn.  R.  127.     Cost  v.  M'Mechan,  6 
Johns.  R.  160. 

•  Valin,  Com.  tome  i,  p.  394.     Pothier,   Traiti  de  la  Char  te- Par  tie,  n. 
31,  50. 

'  Emerigon,  tome  i,  p.  532. 


WHEN  THE  BUIITHE]N   IS  CHANGED.  221 

seems  quite  clear  that  the  only  burthen  upon  the  master  is 
to  show  that  the  loss  occurred  by  some  vis  major.  Yalin 
says,  that  "it  is  for  him  to  prove  the  casus  fort  u  it  us  ;^''^ 
and  he  cites  Peckius,  Vinnius  and  Casaregis,  who  add, 
that  if  the  adverse  party  allege  that  the  accident  hap- 
pened by  his  fault,  it  is  for  them  to  prove  it,  because  it  is 
an  exception  which  renders  them  demandants,  [actors,] 
in  this  matter.-  Pothier,  also,  lays  it  down,  that  the 
master  must  show  the  loss  to  have  been  caused  by  a  vis 
major ;  but  he  does  not  intimate  that  he  is  obliged  to 
show  affirmatively  that  there  was  no  negligence.  His 
language  rather  implies  that  after  a  prima  facie  case  of  a 
loss  by  a  peril  of  the  sea,  it  is  for  the  other  party  to  show 
that  the  neslio-cnce  of  the  master  caused  or  contributed 
to  the  loss.^ 

The  common  law  authorities  are  not  so  clear  upon 
this  point,  but  I  apprehend  that  the  principles  on  which 
they  proceed  will  not  lead  to  a  different  result.  The 
master  (being  a  common  carrier)  is  treated  as  an  insurer 
of  the  safety  of  the  goods  against  all  but  two  classes  of 


'  Valin,  tome  i,  p.  394.  *  H^i^I- 

'  Poihicr,  Tratd  de  Cliarle-Partie,  n.  35,  38,  39.  The  passage,  which  is 
particularly  cited  here,  is  as  follows :  "  Not  only  is  the  master  bound  to  ex- 
hibit all  the  goods  with  which  he  is  charged  by  the  bill  of  lading,  but  also 
to  exhibit  [deliver]  them  in  the  same  condition  in  which  he  received  them, 
unless  they  have  since  been  damaged  by  accidents  of  vis  mnjnr,  {force  ma- 
jeure,) for  which  he  is  not  responsible.   But  if  it  was  by  the  act  or  negligence 

of  the  master,  or  his  people,  he  is  obliged  to  indemnify  the  freighter 

When  the  dispute  about  the  condition  of  the  goods,  which  he  to  whom  they 
were  consigned  alleges  to  have  been  damaged  by  the  fault  of  the  master, 
cannot  be  decided  promptly,  the  master  may  require  to  be  paid  his  freight 
provisionally,  either  on  giving  security,  or  without  security,  according  as 
the  dispute  shall  appear  to  be  well  or  ill  founded,"  n.  38,  39. 


222  WHEN  NRGLTGKNCE  MUST  BE  I'ROVED. 

events — the  acts  of  Cod  and  tlie  ]inl)lic   cnemy.^     The 
h\\\  j)iL\snmcs  ai;ahist  liini  in  all  cases  but  these;  so  tliat 
the  lirst  ([uestion  to  be  settled  is,  not  whether  tliere  has 
been  negligence,  bnt  whether  tlie  loss  falls  within  either 
of  the  cases  excepted   by  the   general   princi])les  of  law, 
or  the  i)articular  contract  of  the   })arties.^     If  it  is  shown 
that  the  loss  falls  within  either  of  the  excepted  cases, 
does  the  km  still  presume   against   him  ?     On   the  con- 
trary, as  it  seems  to  me,  he  is  here  entitled  to  the  benc^fit 
of  the   principle  by  which  every   man   is  presumed    to 
have  performed  the  duty  incumbent   upon   him.     The 
first  presumption  against  him  is  in  all  but  certain  excepted 
cases,  and  is  founded  on  public  policy.     The  excepted 
case  having  occurred,  that  presumption  is,  so  to  speak,  dis- 
charged of  its  office  ;  and  then  the  presumption  of  inno- 
cence, which  public  policy  had  suspended  in  all  other  cases, 
seems  necessarily  to  apply.     This  view  of  the  subject  is 
sanctioned  by  what  fell  from  Lord  Mansfield  in  the  case  of 
Forward  v.  Pittard :  "  To  prevent  litigation,  collusion, 
and  the  necessity  of  going  into  circumstances  impossible 
to  be  unravelled,  the  law  presumes  against  the  carrier, 
unless  he  shows  it  was  done  by  the  king's  enemies,  or  by 
such  act  as  could  not  happen  by  the  intervention  of  man, 
as  storms,  lightning  and  tempests."^     The  fair  deduction 

*  Riley  v.  Home,  5  Bing.  R.  217. 

*  Abbot  on  Ship,  part  3,  ch.  4,  sec.  1. 

3  1  Term  R.  3S.  See  also  the  case  of  Cost  v.  Mechan,  6  Johns.  R.  IGO. 
In  this  case,  where  the  vessel  was  beating  up  a  river,  and  on  making  a 
tack  near  the  shore,  the  wind  suddenly  changed,  and  the  vessel  was  carried 
upon  the  bank,  and  the  cargo  injured,  it  was  found  by  the  jury  that  the 
change  of  wind  was  the  proximate  cause  of  the  loss,  and  the  court  held  it 
to  be  an  act  of  God.  Upon  argument  before  the  whole  court,  it  was  con- 
tended that  there  was  negligence  on  the  part  of  the  master  in  running  so 


MASTER'S  RESPONSIBILITY  AS  COMMON  CARRIER.  223 

from  this  language  is,  that  when  he  has  shewn  that  the 
loss  proceeded  prima  facie  from  one  of  the  excepted 
causes,  the  law  no  longer  presumes  against  him,  and  it 
is  for  the  other  party  to  prove  negligence. 

But  in  all  cases  where  the  master  cannot  bring  himself 
within  one  of  the  cases  excepted  by  the  contract,  or,  m 
the  absence  of  a  contract,  by  the  general  principles  of 
law,  he  must  pay  the  loss,  whether  there  has  or  has  not 
been  any  negligence  on  his  part.  We  have  seen  what 
cases  are  deemed  to  be  "  perils,  or  dangers  of  the  sea," 
the  phrase  commonly  used  in  the  bill  of  lading.  Where 
there  is  no  bill  of  lading,  the  only  cases  which  excuse 
the  master  are  the  act  of  God,^  and  of  the  public  enemy  f 
and  unless  the  loss  can  be  brought  within  one  of  these, 
it  matters  not  whether  there  has  been  any  negligence  or 
not. 

We  have  now  to  develop  further  the  master's  relation 

near  the  bank.  The  court  said  that  even  if  there  were  grounds  of  negli- 
gence, that  point  had  been  open  to  the  plaintiff  at  the  trial ;  and,  as  the  ver- 
dict did  not  find  any  negligence,  they  could  not  set  aside  a  verdict,  when 
the  plaintiff  was  seeking  to  hold  the  defendant  under  a  rigid  rule  of  law, 
in  order  to  ^ive  the  plaintiff  another  opportunity  to  urge  that  objection. 

'  The  meaning  of  this  expression  includes  natural  accidents,  such  as 
lightning,  earthnuake  and  tempest,  and  not  arising  from  the  agency  of  man. 
Trent  and  Mrrscij  Navigation  Company  v.  Wood,  3  Esp.  R.  127.  Forward  V. 
Pittard,  1  T.  R.  27.  So  that  the  carrier  is  liable  for  a  loss  by  an  accidental 
fire,  wholly  without  negligence  on  his  part,  {Fonvard  v.  Pittard,  ante,) 
and  by  an  accident  arising  from  an  unseen  nuisance  in  the  course  of  his 
navisation.     {Prop.  Trent,  and  Mersey  Nav.  v.  Wood,  ante.) 

'  The  public  enemy  includes  that  people  with  whom  tiie  nation  is  at  open 
war,  and  pirates,  with  wiiom  all  nialund  arc  deemed  to  be  in  a  stale  of  war. 
The  master  is  liable  for  thefts,  robberies  and  embezzlements  by  all  oihcr 
persons,  although  he  may  have  used  all  diligence.  Abbot  on  Ship,  part  3, 
ch,  3,  "ver.  3.  Srhi'fflin  v.  Harvey,  6  Johns.  R.  170.  Watkinsim  v.  Laugh- 
Ion,  8  Johns.  R.  213.     Morse  v.  Slue,  ]  Vent.  190,  238. 


221.  1IV1'0T111:CAT10.\   OF   CARGO    BY  T[IE   MASTER. 

to  the  caifio,  by  noticiiii;"  llio  culdilioiial  ])owers  with 
AA  hicli  lie  becomes  invested  by  the  poliey  of  the  law,  in 
jiarticiihir  emergencies. 

6.  Power  of  hypothecation  and  sale.  Ordinarily,  as 
has  been  stated,  the  master  is  a  stranger  to  the  cargo, 
beyond  the  pnrposes  of  safe  custody  and  conveyance ; 
but  there  comes  often  to  be  applied  to  his  situation  anew 
principle,  by  which  the  necessities  of  sudden  and  unpro- 
vided emergencies  are  recognised  as  the  legitimate  sources 
of  a  new  authority,  and  he  is  made  the  agent  of  the  pro- 
prietors of  the  cargo,  as  well  as  of  the  ship.  The  germ 
of  this  principle  is  to  be  found  in  a  remote  antiquity,  and 
thence  it  has  been  incorporated,  by  application  to  analo- 
gous cases,  into  most  of  the  maritime  codes  of  Europe.^ 

^  It  is  first  to  be  traced  in  the  Roman  law.  In  the  primitive  forms  in 
which  commercial  intercourse  was  then  carried  on,  the  merchant  went  with 
his  goods  and  carried  his  own  provisions  for  the  voyage,  those  of  the  ship's 
company  alone  being  provided  by  the  master.  In  a  case  of  necessity,  the 
master  could  compel  the  merchant  to  bring  his  stores  into  the  common 
stock.  Dig.  liv.  14,  tit.  2,  sec.  2,  fr.  2.  Experience  and  the  enlarging  in- 
terests of  commerce  gradually  extended  the  same  principle  to  all  analogous 
cases.  Thus,  in  the  laws  of  Oleron,  a  power  to  sell  a  part  of  the  cargo  is 
expressly  given  to  the  master,  in  case  of  necessity,  to  make  repairs  of  the 
ship  in  a  foreign  port.  [Juqcmcns  D^ Oleron,  art.  23.)  The  Consolalo  says 
that  freighters,  when  on  board,  ought  to  loan  their  money  to  the  master  in 
a  like  case  of  necessity;  and  if  they  have  no  money  on  board,  it  empowers 
the  master  to  sell  their  goods  in  sufficient  quantity  to  make  the  necessary 
repairs.  Consolalo  del  iVfarc,  ch.  61,  [106,]  62,  [107.]  Pard.  tome  ii,  p. 
109,  110.  The  same  power  is  given  by  tlie  laws  of  "Wisbuy,  (art.  43,  44,) 
and  is  incorporated  into  the  French  ordinance,  (liv.  2,  tit.  1,  art.  19.)  The 
reason  assigned  in  all  these  codes  is,  that  the  master  is  bound  to  carry  the 
cargo  on  to  the  place  of  its  destination,  and  is  responsible  in  damages  to 
the  freighters  if,  by  his  own  neglect  or  default,  he  does  not.  Thus  arose 
the  doctrines  of  hypothecation  and  sale  applied  to  the  cargo  by  the  expan- 
sive character  of  the  modern  maritime  law,  tracing  the  authority  up  to  the 
fountains  of  those  usages  and  customs  of  the  sea  which  have  been  recog- 
nised and  acted  upon  for  so  many  ages. 


''  POWER  TO  HYPOTHECATE  OR  SELL  CARGO.  225 

Its  full   ap])lication   and   the   limits   of  such   application 
remained  for  Sir  William  Scott ;  and,  in   his  celebrated 
judgment   in   the   case  of  the    Gratitudine,   he   has  an- 
nounced the  doctrine  in  so  complete  and,  at  the  same 
time,  precise  terms,   that  little  doubt  or  uncertainty  can 
now  remain  respecting  some  of  the  exact  powers  of  the 
master,  over  the  cargo,  in  cases  of  distress  in  a  foreign 
port.^     After  stating  the   general  principle   that,  in   the 
ordinary  state  of  things,  the  master  is  a  stranger  to  the 
cargo,  beyond  the  puri)oses  of  safe  custody  and  convey- 
ance,  he  proceeds   to   ])oint  out  the   exceptions,   under 
which  he  may  be  clothed  with  an  entirely  new  character  ; 
as  in   cases  of  instant  and  unforeseen  and  unprovided 
necessity,  where  the  character  of  agent  and  supercargo 
is  forced  upon  him  by  the  general  policy  of  the  law,  as 
well  at  sea  as  in  intermediate  ports ;  and  he  holds  that 
where  the  master  cannot  obtain  funds  on  a  pledge  of  the 
ship,  he  has  power  to  bind  the  whole  cargo  for  the  repairs 
necessary  to   effect  the   prosecution  of  the  voyage,  by  a 
bottonny  bond,   or  to  sell  a    part  of  the   cargo  for  the 
same  })urpose.'-     If  the   repairs   of  the  ship  })roduce  no 

'  3  Robinson's  Adm.  R.  210.  It  is  the  peculiarity  of  this  masterly  judg- 
ment, that,  while  it  settles  the  point  immediately  before  the  court,  it  has, 
at  the  same  time,  announced  the  whole  doctrines  of  the  master's  relation  to 
the  cargo  so  fully,  and  with  such  clearness  and  cautious  examination  of 
authorities,  that  it  has  been  received  with  implicit  confidence  upon  all  the 
points  which  it  touches.  I  do  not  remember  an  instance  in  which  its  sound- 
ness has  been  called  in  question,  by  text  writers  or  tribunals  ;  and  many  of 
our  own  courts  have  relied  upon  and  adopted  its  authority.  The  subject  is 
made  res  ajudicata.  See  also  Freeman  v.  E.  I.  Company,  5  B.  and  Aid.  G17. 
Morris  V.  Rofnnsou,  3  15.  and  Cresw.  19G.  Curran  V.  Mcahurn,  I  Bing. 
243. 

*  There  is  tlii->  diMimction,  he  says,  between  a  sale  of  the  cargo  and  an 
hypothecation  of  it.     (July  a  part  can  be  sold,  because  the  express  purpose 

29 


226  rOWER  TO   IlVrOTllECATE  OR  SELL  CARGO. 

benefit  or  prosjiort  of  1)(Mi(^fit  to  the  caro'O,  tlie  master 
can  neiilicr  sell  nor  liypotheeate  ;  but  tlioui;ii  tlie  ])ros- 
pect  of  benefit  may  be  more  direct  and  more  immediate 
to  the  ship,  it  may  still  be  Ibr  the  j)reservation  and  con- 
veyance of  the  car^o ;  and  when  it  is  so,  it  is  Justly  to 
be  considered  as  done  for  the  common  benefit  of  both 
ship  and  cargo.^ 

The  question,  whether  the  master  is  bound  to  select 
any  particular  part  of  the  cargo,  and  apply  it  to  the  ex- 
penses of  necessary  repairs,  rather  than  to  hypothecate 
the  whole,  when  he  cannot  procure  funds  on  the  ship, 
came  before  the  Circuit  Court  of  the  United  States  for 
the  First  Circuit.  Coin,  belonging  to  shippers,  being 
on  board,  when  the  necessity  for  the  repairs  occurred, 
it  was  contended  that  it  was  the  duty  of  the  mas- 
ter to  have  made  use  of  it,  in  preference  to  borrowing 

of  the  sale  is  to  enable  the  remainder  to  go  forward.  But  the  whole  may 
be  hypothecated.  Ibid.  As  to  when  the  whole  cargo  may  be  sold,  see 
infra,  p.  229,  230. 

'  Ibid.  This  doctrine  has  been  amply  recognised  in  this  country.  The 
Packet,  3  Mason's  R.  255.  The  Zephyr,  Ibid .  34L  United  Ins.  Co.  v.  Scott  1 , 
Johns.  R.  106.  Fontaine  v.  Col.  Ins.  Co.,  9  Johns.  R.  29.  Searle  v.  Scovell, 
4  Johns.  Ch.  R.  222.  American  Ins.  Co.  v.  Coster,  3  Paige's  R.  323.  Ross 
V.  Ship  Active,  2  Wash.  R.  226.  In  this  last  case,  Mr.  Justice  Washington 
thus  announced  the  doctrine  :  "  If  the  owner  of  the  ship  be  also  owner,  or 
part  owner  of  the  cargo,  the  master  may,  in  his  discretion,  sell  a  part  of  the 
cargo,  in  preference  to  borrowing  upon  an  extraordinary  rate  of  interest; 
and,  in  his  choice  of  means,  his  judgment,  fairly  exercised,  must  govern 
him.  If  in  none  of  these  ways,  (by  drawing  bills  on  his  owner,  by  hypoth- 
ecating the  ship,  or  by  applying  such  funds  or  other  property  as  the  owner 
has  onboard,)  he  can  supply  his  wants,  he  may  then  go  beyond  the  general 
scope  of  his  authority  as  master,  and  may  sell  a  part  of  the  cargo,  or  hy- 
pothecate the  whole.  But  the  necessity  must  be  such  as  to  connect  the  act 
with  the  success  of  the  voyage,  and  not  for  the  exclusive  interest  of  the 
ship-owner." 


JETTISON,  227 

upon  bottomry  of  the  whole  cargo.  Mr.  Justice  Story 
held  that  there  was  no  such  absolute  rule  ;  that  the  gen- 
eral principle  is,  that  the  master  is  bound  to  act  with  a 
reasonable  discretion.  He  is  to  get  the  necessary  repairs 
done  at  as  little  sacrifice  as  is  practicable ;  and  according 
as  the  use  of  the  money  on  board  would  or  would  not  be 
the  least  sacrifice,  so  he  is  to  resort  to  it  in  the  first 
instance.  On  these  points,  he  has  a  large  discretion, 
and  though  it  should  afterwards  be  found  that  he  had 
committed  an  error  in  judgment,  the  parties  will  be 
bound  by  his  acts,  if  done  bona  fide  and  with  reasonable 
care.^ 

7.  Jettison.  The  same  principle  of  necessity  authorizes 
the  master  to  throw  overboard  a  part  of  the  cargo,  in 
case  of  imminent  danger,  in  order  to  save  the  residue, 
and  even  to  throw  the  whole  overboard,  in  a  case  of  ex- 
treme danger,  when  the  lives  of  the  crew  cannot  other- 
wise be  saved,  leaving  to  the  ship  to  contribute  its  aver- 
age proportion."  The  ancient  marine  ordinances  required 
that  the  master  should  take  the  opinion  of  the  crew, 
upon  the  necessity  for  the  jettison  ;  and  some  of  them 
specify  the  goods  to  be  first  selected.^     This  is  the  law 

'   The  Pficht,  3  Mason's  R.  255.     But  money  of  the  ship-owner  he 
absolutely  bound  to  apply  first ;  perhaps  also  money  of  his  own.     Ibid 
ante,  ch.  1,  p.  1S2. 

•  Tlie  Gratitudine,  3  Rob.  Adm.  R.  240.  "  It  is  said,"  observed  Sir  Wm 
Scott,  in  this  case,  "  that  this  power  of  throwing  over  the  whole  cannot 
be  but  in  cases  of  extreme  danj^er,  which  sweeps  all  ordinary  rules  before 
it;  and  so  it  is.  So  likewise  with  respect  to  any  proporlion,  the  uiasler 
can  be  justified  only  by  that  necessity ;  nothing  short  of  that  will  do,  —  the 
mere  convenience  of  better  sailing,  or  more  commodious  stowage,  will  not 
justify  him  to  throw  overboard  the  smallest  part.  It  must  be  a  necessity 
of  the  same  species,  thou;,'h  pfrliaps  difTering  in  the  degree." 

'  Droit  Mar.  dts  li/wdiciis,  chap.  9,  38.     Pard.  tome  i,  pp.  243,  254,    Lois 


228  RANSOM  —  TRANSHIPMENT. 

of  France,  at  lliis  (l;iy/  But  it  is  not  understood  to  be 
the  modern  law  in  Eni;land  or  in  this  eounlry.  The 
master  alone  is  authorized  to  make  a  Jettison,  and  he  is 
not  bound  to  consult  the  crew ;-  and  he  may  select  what 
articles  he  pleases,  and  determine  their  (|uantity.^  But 
it  seems  that  the  ancient  regulation  that  the  master 
should  draw  up  an  account  of  the  jettison,  and  verify  it 
by  his  ow  n  oath  and  that  of  some  of  his  crew,  as  soon 
afterwards  as  may  be,  is  still  recognised.'' 

8.  Ransom.  Tiiis  contract,  by  which  a  sum  of  money  is 
given  to  an  enemy,  a  })irate,  or  other  captor,  for  the  rede- 
livery of  the  vessel  or  cargo  taken,  or  one  part  of  the  cargo  is 
given  for  the  release  of  the  remainder,  or  the  whole  is  bound 
for  the  payment  of  the  stij)ulated  sum,  is  by  the  maritime 
law  entirely  within  the  scope  of  the  master's  authority, 
enlarged  as  it  is  by  the  necessities  of  the  case.^  By  it, 
he  may  bind  the  whole  cargo,  as  well  as  the  ship.^ 

9.  Transhipment.     When  the  vessel  is  driven  into  an 

D'Olcron,  art.  8,  9.  IbiJ.  pp.  328,  329.  Lois  de  Wisbuy,  art.  29.  Con- 
solato  del  Marc,  chap.  54,  [99].     Pard.  tome  ii,  p.  104. 

'  VOrd  de  la  Marine,  liv.  3,  tit.  2,  art.  1.     Code  de  Commerce,  art.  410. 

^    The  Nimrod,  Ware's  R.  1.     Sims  v.  Gumcy,  4  Binn.  R.  513. 

'  The  Gratitudine,  3  Rob.  Adm.  R.  240.  See  Abbot  on  Shipping,  part  3, 
cli.  8,  sec.  3,  for  some  judicious  remarks  upon  the  observance  of  forms  in 
making  a  jettison. 

''  Abbot  on  Shipping,  ut  supra.     Ordonanza  de  Bilboa,  24  -43-47. 

•  Consolalo  del  Mare,  ch.  185,  [230],  186,  [231].  Pard.  tome  ii,  pp.  208, 
209,  210.  Jacobsen's  Sea  Laws,  by  Frick,part2,  ch.  4,  p.  562.  The  Grati- 
tudine, 3  Rob.  Adm.  R.  240.  Maisonnaire  ct  al.  v.  Keating,  2  Gallis.  R. 
336. 

*  The  Gratitudine,  ut  supra.  By  a  modern  regulation,  ransom  is  put  an 
end  to  in  the  British  practice.  Ibid.  But  it  is  not  prohibited  by  our  law. 
Girard  v.  Ware,  1  Peters's  Circ.  C.  R.  142.  The  Saratoga,  2  Gallis.  R. 
164.  Maisonnaire  v.  Keating,  Ibid.  336.  Brooks  v.  Dorr,  2  Mass.  R.  39. 
Spafford  v.  Dodge,  14  Mass.  R.  06. 


TRAXSHIPMEMT.  229 

intermediate  port,  in  a  state  requiring  repairs,  the  ques- 
tion arises  whether  the  master  has  power  to  tranship 
the  car^io  into  another  vessel,  and  send  it  on,  and  whether 
he  is  ever,  and  in  what  cases,  bound  to  do  so. 

It  is  clear  from  all  the  authorities,  ancient  and  modern, 
that  if  the  ship  cannot  be  repaired  at  all,  or  not  without 
very  great  loss  of  time,  the  master  is  at  liberty  to  tranship, 
and  so  to  earn  the  ^\  hole  freight.'  In  such  case,  the 
freighter  is  bound  to  pay  the  extra  freight  for  the  renew- 
ed vovage,  which  the  master  pays  for  the  hire  of  the  ves- 
sel which  he  procures.-  If,  however,  the  vessel  can  be 
repaired  in  a  reasonable  time,  and  the  cargo  is  not  perish- 
able, the  master  is  not  bound  to  tranship,  but  he  may 
detain  the  cargo  until  the  repairs  are  completed.^  If  the 
cargo  is  of  a  perishable  nature,  and  there  is  not  time  or 
opportunity  to  consult  the  proprietor,  he  may  sell  a  part 
of  it,  or  hypothecate  the  whole,  if  necessary,  to  effect 
the  repairs  of  the  ship,  and  to  enable  him  to  carry  the 
residue  forward,  or  he  may  tranship  it,  according  as  in 
the  best  exercise  of  his  judgment,  would  be  for  the  in- 
terest of  the  whole  cargo.'     But  he  cannot  sell  the  whole 

•  Lois  D'Olcron,  art.  4.  VOrd.  dc  la  Marine,  Viv.  3,  tit.  3,  art.  11. 
Valin,  Com m.  tome  i,  p.  G51.  Emerigon,  tome  i,  p.  420-433.  Polhier, 
C/iarlc-PartiP,  n.  08.  The  Gratitudine,  3  llolj.  Adm.  R .  240.  Luke  v.  Lyde^ 
2  Burr.  889.     Schicjfhn  v.  New  York  Exch.  Ins.  Co.,  9  Johns.  R.  21. 

»  Ibid,  and  Scarh  v.  Scovell,  4  Johns.  Ch.  R.  218.  That  is  to  say,  the 
owner  of  the  goods  is  not  responsible  for  the  old  mid  the  new  freight  united, 
hut  for  the  excess  of  tlio  whole  freight  over  wiiat  tlic  old  freight  would 
have  heen,  if  the  first  ship  had  heen  able  to  carry  on  the  goods.  Ibid.  See 
also  Shipton  v.  Thornton,  9  Adol.  and  Ellis,  314. 

=•  Clark  V.  Mass.  Fire  and  Mar.  Ins.  Co.,  2  i'ick.  R.  101.  Sec  also 
Palmer  v.  LnriUard,  10  Johns.  R.  348. 

♦  The  iiralUudinr,  3  Rob.  Adin.  R.  240.  Abbot  on  Shipping,  part  2, 
ch.  3,  sec.  8.     Tlw.  Packet,  3  Mason's  R.  2j5. 


230  TRANSIIll'MENT. 

carijo,  nnd  thus  put  au  end  to  the  adventure,  either  for 
the  purpose  of  repairing  his  ship,  to  let  it  proceed  empty, 
or  \vheri>  liis  ship  is  totally  disabled,  unless  it  is  wholly 
out  of  his  power  to  procure  another  suitable  vessel  in  the 
same,  or  a  contii^uous  port.'  Whotlun-  he  can  sell  the 
whole,  in  this  last  case,  would  depend  much  on  the 
nature  of  the  cargo  and  its  exposure  to  destruction.  If 
it  were  perishable,  it  would  seem  to  be  prudent  to  sell ; 
if  not  perishable,  it  is  his  duty  to  store  it  and  inform  the 
proprietor,  as  soon  as  possible.^  In  all  cases,  the  owner 
of  the  cargo  should  be  consulted  if  possible.^  These 
proi)Ositions,  understood  to  be  well  settled,  clearly  enough 
indicate  the  master's  duty,  in  a  large  variety  of  cases. 
But  cases  may  arise,  where  some  more  precise  state- 
ment of  the  degree  of  obligation  to  tranship  resting  upon 
the  master,  may  be  useful  ;  as  where  the  vessel  cannot 
be  repaired  at  all,  and  the  cargo  is  not  immediately 
perishable. 

It  does  not  appear  from  the  very  early  maritime  law 
that  the  master  was  bound  to  procure  another  vessel,  if 
his  own  became  innavigable  by  perils  of  the  sea.     He 

^  The  Gratitudinc,  ut  supra.  Searle  v.  Scovell,  4  Johns.  Ch.  R.  218. 
Hunter  V.  Prinscp,  10  East's  R.  393.  Saltus  v.  Ocean  Jns.  Co.,  12  Johns. 
R.  107. 

*  Salius  V.  Ocean  Jns.  Co.,  ut  supra.  Treadwell  v.  Union  Ins.  Co.,  6 
Cowen's  R.  270.     Liddard  v.  Lopes  cl  al,  10  East's  R.  526. 

'  Wilson  V.  Millar  et  al,  2  Starkie,  1.  Amer.  Ins.  Co.  v.  Center,  4 
Wendell's  R.  52.  Freeman  v.  E.  India  Co.,  5  B.  &  A.  617.  Abbot  on 
Shipping,  pp.  240,  241,  243,  and  notes.  The  master  cannot  sell  the  cargo 
merely  on  the  ground  that  a  sale  will  be  the  best  thing  for  all  concerned  in 
the  voyage,  and  that  a  prudent  owner,  if  present,  would  sell  under  the 
same  circunnstances;  but  he  will  be  justified  in  selling  only  by  a  legal 
necessity.  Bryant  v.  Com.  Ins.  Co.,  13  Pick.  R.  543.  Hall  v.  Franklin 
Ins.  Co.,  9  Ibid.  478. 


TR.\i\SHIPMEA"T.  231 

was  discharged,  by  such  an  occurrence,  from  his  contract 
to  carry  the  goods,  if  he  elected  to  be  so  discharged.^ 
The  first  mention  of  any  obligation  to  procure  another 
vessel,  occurs  in  the  French  Ordinance  ;  and  certainly 
the  language  is  peremptory.-  But  Valin  and  Pothier 
construe  the  passage  as  meaning  only  to  place  the  master 
under  this  obligation,  in  case  he  wishes  to  earn  the  whole 
freight.^  On  the  other  hand,  Emerigon,  Boulay  Paty  and 
Pardessus,  construe  it  otherwise,  and  hold  that  it  is  the 
positive  duty  of  the  master  to  procure  another  vessel.'' 
The  Code  Napoleon  has  adopted  the  language  of  the 
Ordinance,^  and  one  of  its  recent  commentators  remarks 
that  the  passage  is  not  permissive,  (facultative^)  and  that 
the  master  is  not  discharged  from  it,  except  by  being 
unable  to  find  another  ship.'^ 

It  being  clear  that  the  master  may  procure  another  ves- 
sel, and  thus  entitle  himself  to  the  whole  freight,'  the 
courts,  both  in  England  and  America,  have  affirmed  it  to 
be  his  duty  to  do  so ;  upon  the  principle  that  he  becomes, 

>  By  the  Rhodian  Laiv,  Dig.  14,  2,  10,  1.  Jugemens  D'Oleron,  art.  4. 
Droit  Mar.  de  Wixbmj,  art.  18,  [16.]  By  these  authorities  the  master  was 
at  liberty  to  procure  another  ship,  and  by  so  doing  to  entitle  himself  to  the 
whole  freight. 

'  "  If  the  master  is  constrained  to  repair  his  vessel  during  the  voyage, 
the  freighter  t^hall  wait,  or  pay  liim  the  whole  freiglit ;  and  in  case  tiie  vessel 
cannot  be  refitted,  the  master  shall  immediately  hire  another,  (sera  oblige 
d'eu  couer  incessamment  un  autre),  and  if  he  cannot  find  one,  he  shall  be 
paid  his  freight  in  proportion  to  the  part  of  the  voyage  already  accom- 
plished."    VOrd.  de  la  Marine,  liv.  3,  tit.  3,  art.  11. 

'  Valin,  Com.  touie  i,  p.  651.     Pothier,  Chartr.Partie,  n.  08. 

*  Emerigon,  tome  i,  p.  428,  429.  Boulay  Paty,  Cours  dc  Droit  Coin., 
tome  ii,  p.  400,  et  seq.     Pardessus,  Cours  de  Droit  Com.,  tome  iii,  n.  644. 

*  Code  de  Commerce,  art.  209. 

*  Sautayra,  Code  de  Com.,  p.  189,  (Paris,  1836.) 
'   Hunln  V.  Prinxr/i,  10  East,  304. 


232  TRANS  HI  PMENT. 

by  the  disaster,  the  agent  of  tlie  owner  of  tlie  cargo,  or 
of  the  underwriter  on  the  cargo,  and  that  what  viai/  he 
done,  ought  to  he  done,  when  the  rights  of  third  persons 
are  cssentiallv  concerned  in  tlie  act.'  Tlius  it  has  heen 
held  to  be  the  master's  duty  to  procure  another  ship,  if 
his  own  l)ecomcs  disaWed,  and  forward  the  cargo  ;  and 
he  must  carry  liis  efforts  so  far  as  to  go  to  a  contiguous 
port  to  procure  it,  if  one  cannot  be  had  at  the  port  where 
his  vessel  lies.-  But  he  is  not  obliged  to  go  further  than  to 
"  a  port  immediately  contiguous,"  to  seek  another  vessel.^ 
Much  depends,  also,  uj)on  the  nature  and  condition 
of  the  cargo,  whether  the  master's  duty  to  tranship  is  to 
be  considered  imperative.  The  Supreme  Court  of  the 
State  of  New  York  intimated  in  the  case  last  cited,  that 
the  master  was  not  obliged  to  lade  the  cargo  in  a  number 
of  vessels,  w  hen  the  freight,  from  the  greatly  deteriorated 
condition  of  the  cargo,  would  have  been  enormously  dis- 
proportionate to  its  value  ;  but  the  case  was  decided  upon 
another  point,  respecting  the  contiguity  of  the  port  where 
vessels  could  be  procured.''  But  in  a  more  recent  case 
they  held  that,  independent  of  the  opportunity  for  pro- 
curing a  vessel,  there  might  be  further  serious  impedi- 
ments  to  a  transhipment,  which   must   be  regarded  as 


'  Shipton  V.  Thornton,  9  Adol.  and  Ellis,  314. 

"  Wibon  V.  The  Royal  Ex.  Assur.  Co.,  2  Camp.  N.  P.  R.  C23.  Schief- 
flin  V.  N.  York  Ins.  Co.,  9  Johns.  E.  21.  Scarle  v.  Scovell,  4  Johns.  Ch.  R. 
218.     Mumford  v.  Com.  Ins.  Co.,  5  Johns.  R.  262. 

'  Saltus  V.  Ocean  Ins.  Co.,  12  Johns.  R.  112.  In  this  casp,  tlie  master 
was  with  his  vessel  at  Kinsale,  in  Ireland  :  the  court  held  that  he  was  not 
bound  to  go  to  the  port  of  Cork,  a  distance  of  sixteen  miles,  to  get  another 
vessel.  The  same  court  have  reaffirmed  this  rule  in  Treadwell  v.  I'nion 
Ins.  Co.,  G  Cowen's  R.  276. 

*  SaUus  V.  Ocean  Ins.  Co.,  ut  supra. 


TRANSHIPMENT.  233 

limitations  of  the  rule  :  as  where  the  cargo  (being  wheat, 
apparently  shipped  in  l)ulk)  would  first  have  had  to  be 
carted  across  a  beach,  and  then  to  have  been  transported 
in  boats  a  distance  of  several  miles,  to  be  put  on  board 
the  new  vessel,  it  being  impracticable  to  approach  the 
shore. ^ 

The  Circuit  Court  of  the  United  States  for  Massachu- 
setts District  have  very  recently  held  that  where  the  cargo 
is  so  much  injured,  (ahhough  capable  of  being  carried  to 
the  port  of  destination  and  there  landed,)  that  it  will 
endanger  the  safety  of  the  ship  and  cargo,'  or  it  \\  ill  be- 
come utterly  \\orthless,  it  is  the  duty  of  the  master  to 


'  Trcadwell  v.  Union  Ins.  Co.,  ut  supra.  See  also  Herbert  v.  Hallct,  3 
Johns.  Cases,  93.  In  the  case  of  Shipton  v.  Thornton,  (9  Adol.  and  Ellis, 
314,)  the  Court  of  Queen's  Bench  said,  "  It  may  well  be  that  the  master's 
right  to  tranship  may  be  limited  to  those  cases  in  which  the  voyage  may  be 
completed  on  its  original  terms  as  to  freight,  so  as  to  occasion  no  further 
charge  to  the  freighter;  and  that,  where  the  freight  cannot  be  procured  at 
that  rate,  another  but  familiar  principle  will  be  introduced,  that  of  agency 
for  the  merchant.  For  it  must  never  be  forgotten  that  the  master  acts  in  a 
double  capacity,  as  agent  of  the  owner  as  to  the  ship  and  freight,  and  agent 
of  ihe  merchant  as  to  the  goods;  these  interests  may  sometimes  conflict 
with  each  other,  and  from  that  circumstance  may  have  arisen  the  difficulty 
of  defining  the  master's  duty  under  all  circumstances  in  any  but  very  gene- 
ral terms.  The  case  now  put  supposes  an  inability  to  complete  the  con- 
tract on  its  original  terms  in  another  bottom,  and  therefore  the  ship  owner's 
right  to  tranship  is  at  an  end  ;  but  still,  all  circumstances  considered,  it 
may  be  greatly  for  the  benefit  of  the  freighter  that  the  goods  should  be  for- 
warded to  tlieir  destination,  even  at  an  increased  rate  of  freight ;  and,  if  so, 
it  will  be  the  duty  of  the  master  as  his  agent  to  do  so.  In  such  a  coar,  the 
frei!:(liler  will  be  luiund  by  the  act  of  his  agent,  and  of  course  be  liable  for 
the  increased  freight.  The  rule  will  be  the  same  whether  the  transhipment 
be  made  by  the  ship-owner  or  the  master  ;  and  in  applying  it,  circumstances 
make  it  necessary,  ou  the  one  hand,  to  repose  a  large  discretion  in  the  mas- 
ter or  owner,  while  the  same  circumstances  require  that  the  exercise  of  that 
large  discretion  should  be  very  narrowly  watched." 

30 


234  TKANSIIIPAIENT. 

land  and  sell  the  cargo  at  the  place  where  the  necessity 
arises.' 

Since  the  foregoing  text  was  written,  I  have  seen  a 
recent  case  in  the  Court  of  Queen's  Bench  upon  this  sub- 
ject of  transhipment,  which  presented  a  novel  question. 
Goods  were  shipped  under  a  bill  of  lading  in  a  general 
ship,  which  was  prevented  from  completing  the  voyage 
in  consequence  of  damage  occasioned  by  a  tempest.  The 
master  forwarded  the  goods  to  the  place  of  destina- 
tion, by  a  conveyance,  for  which  he  paid  a  less  freight 
than  he  would  have  been  entitled  to,  for  that  portion  of 
the  voyage,  if  he  had  carried  them  in  his  own  vessel. 
He  had  been  paid  freight  at  the  rate  originally  agreed  on 
for  so  much  of  the  voyage  as  had  been  performed  when  the 
goods  were  transhipped,  and  for  the  remainder  of  the 
voyage  at  the  rate  which  he  paid  for  the  carriage  of  the 
goods  by  the  substituted  vessel.  The  action  was  brought 
to  recover  the  difference  between  what  he  paid  and  what 
he  would  have  been  entitled  to  receive,  if  he  had  brought 
the  goods  himself.  The  court  reviewed  some  of  the 
foreign  authorities  which  I  have  cited  above,  noticing  the 
conflict  in  regard  to  the  obligation  to  tranship,  and  ob- 
served, "  All  authorities,  however,  are  in  unison,  to  this 
extent,  that  '  the  master  is  at  liberty  to  procure  another 
ship  to  transport  the  cargo  to  the  place  of  destination ; ' 
and  in  these  words  Lord  Tenterden  cautiously  lays  down 
the  rule  of  our  law :  p.  240,  part  3,  ch.  3,  sec.  8.  It 
may  therefore  be  safely  taken  to  be  either  the  duty,  or 
the  right,  of  the  ship-owner  to  tranship  in  the  case  of  his 


'  Jordan  ct  al.  v.  Warren  Ins.  Co.,  Oct.  T.  1840,  Lato  Reporter,  Boston, 
May,  1841,  and  4  Sumner's  R. 


DEVIATION.  235 

being  prevented  from  doing  so  in  his  own  ship  by  some 
event  which  he  has  not  occasioned,  and  over  which  he 
has  no  control :  if  it  be  the  former,  (his  duty,)  it  must  be 
so  in  virtue  of  his  original  contract,  and  it  should  seem  to 
result  from  a  performance  by  him  of  that  contract,  that 
he  will  be  entitled  to  the  full  consideration  for  which  it 
was  entered   into,  without  respect  to  the  particular  cir- 
cumstances attending  its  fulfilment :  on  the  other  hand, 
if  it  be  the  latter,  (his  right,)  a  right  to  the  full  freight 
seems  to  be  implied  ;  the  master  is  at  liberty  to  tranship  ; 
but  for  what  purpose,  except  for  that  of  earning  his  full 
freight,  at  the  rate  agreed  on  ?     In  the  case  supposed, 
we  may  introduce  another  circumstance :  let  the  owner 
of  the  goods  arrive,  and  insist,  as  he  undoubtedly  may, 
that  the  goods  shall  not  proceed,  but  be  delivered  to  him 
at  the  intermediate  port ;  there  is  then  no  question  that 
the  whole  freight  at  the  original  rate  must  be  paid  ;  and 
that,  because  the  freighter  prevents  the  master,  who  is 
able  and  willing,  and  has  the  right  to  insist  on  it,  from 
fulfilling  the  contract  on  his  part,  and  because  the  carry- 
inir  the  eoods  to  their  destination  in  another  vessel  is 
deemed  a  fullilmcut  of  the  contract.      If,  therefore,  the 
owner  of  the  goods  be  not  present,  and  personally  exer- 
cises no  option,  still  the  shi])-owner,  in  forwarding  the 
goods,  must  have  the  same  rights,  ami,  in  so  doing,  must 
be  taken  to  exercise  them  with  the  same  object  in  view. 
We  come  to  the  conclusion,  therefore,  that  the  plaintifl 
is  entitled  to  recover  the  difference  sued  for."' 

10.  Deviation.     Closely  connected  with  the  last  topic, 
is  that  of  the  power  of  the  master  to  deviate  from  the 

•  Shipton  V.  Thornton^  0  Adol.  aud  Ellis,  314. 


236  DEVIATION. 

voyage  described  in  the  charter-party,  or  bill  of  lading,  or 
otherwise  agreed  upon  between  his  owner,  or  liimself, 
and  the  iVeiiihter. 

The  general  princij)lc  is,  that  the  master  mnst  pursue 
the  voyage,  whether  the  ship  be  a  general  ship  or  be 
taken  bv  charter-party,  in  the  most  expeditious  and  usual 
course,  and  that  nothing  but  certain  excepted  causes  will 
excuse  a  deviation  from  that  course/  The  master,  as 
such,  has  no  authority  to  change  the  voyage  agreed 
upon  by  his  owners  and  the  freighters,  and  substitute 
another.^ 

One  of  the  legitimate  causes  of  deviation  is  to  render 
assistance  to  vessels  in  distress,  when  such  aid  is  neces- 
sary to  i)reserve  the  lives  of  those  on  board."'  Though  it 
may  formerly  have  admitted  of  some  doubt,  it  is  now 
settled,  that  stopping  for  the  purpose  of  saving  the  lives 
of  persons  shipwrecked  is  not  a  deviation  ;  but  that  any 
stoppage  solely  to  save  property,  or  where  a  part  of  the 
crew  of  the  saving  ship  is  put  on  board  to  navigate  the 
distressed  ship,  and  thereby  the  crew  of  the  saving  ship 
is  materially  diminished,  is  a  deviation,  which  renders  the 
master  and  owners  responsible  for  the  consequences.^ 

'  UOrd.  de  la  Marine,  liv.  3,  tit.  3,  art.  10.  Valin,  Com.  tome  i,  p.  650. 
Davis  V.  Garrett,  6  Bing  R.  716. 

*  Burgon  v.  Sharpe,  2  Camp.  N.  P.  R.  529.  See  also  ante,  Part  III,  ch. 
1,  p.  168. 

^  Mr.  Jacobsen  recommends  the  abolition  of  any  distinction  between  aid 
rendered  to  property  merely,  and  aid  rendered  to  life,  upon  the  question  of 
deviation.     Jacobsen's  Sea  Laws,  by  Frick,  book  4,  ch.  4,  p.  551. 

*  The  Boston  and  Cargo,  1  Sumner's  R.  328.  The  Henry  Euhank,  Ibid. 
400.  Mason  v.  Ship.  Bhiireau,  2  Cranch's  R.  240.  Bond  v.  Brig  Cora,  2 
Washington's  R.  80.  These  were  cases  of  salvage,  where  the  question 
arose  whether  the  insurance  was  avoided  by  the  deviation.  They  do  not 
settle  the  point  as  between  ship-owner  and  freighter.     But  the  same  prin- 


MASTER'S  DUTY  TO  THE  CARGO,  IN  CAPTURE.  237 

Other  justifiable  causes  of  deviation  are  to  repair  the 
ship  from  the  effects  of  accident  or  tempest,  to  avoid  ene- 
mies or  pirates,  and  to  procure  supplies  of  provisions  or 
water  at  places  usually  resorted  to  in  long  voyages  for 
that  purpose.^  But  if  the  master  deviates  unnecessarily 
from  the  voyage,  and  the  cargo  is  injured  by  tempests 
durins;  the  deviation,  the  deviation  is  a  sufficiently  proxi- 
mate cause  of  the  loss  to  entitle  the  freighter  to  recover.^ 

11.  Duty  in  case  of  capture.  The  master's  duty  to- 
wards the  cargo,  in  case  of  capture  by  a  belligerent,  is 
the  same  as  that  towards  the  vessel.^  He  should  remain 
and  await  the  result  of  the  prize  proceedings,  and  exhibit 
the  ])apers  and  documents  with  which  he  has  been  fur- 
nished for  the  protection  of  the  cargo  :  and  generally,  he 
is  to  represent  and  act  for  the  owners  of  the  cargo,  as 
well  as  the  ship,  until  their  wishes  are  made  known."* 
His  duties  do  not  entirely  cease  even  with  condemnation  : 
he  is  to  act  for  the  benefit  of  all  concerned,  and  if  he 
should  deem  an  appeal  expedient,  he  is  bound  to  enter  it, 
and  may,  in  his  discretion,  remain  until  the  means  of  ren- 
derinjj  the  appeal  effectual  are  concluded.  In  such  case, 
he  is  entitled  to  compensation  for  his  services  in  effecting 
the  appeal   and   procuring  the  necessary  papers,  which 

ciples  are  applicable  to  cases  of  aflreiglilmcnt  as  to  policies  of  insurance. 
See  Abbot  on  Shipping,  Notes  by  Story,  p.  239,  n.  1 .  Phillips  on  Insurance, 
ch.  12,  passim. 

'  Abbot  on  Shipping,  part  3,  ch.  3,  sec.  7.  Jacobsen's  Sea  Laws,  by 
Frick,  book  2,  ch.  1,  p.  103. 

'  Davis  V.  (Jarrf.tt,  6  Bing.  R.  716. 

'  ^n/s,  Part  III,  ch.  1. 

♦  Willard  V.  Dorr,  3  Mason's  R.  IGl.  The  Saratoga,  2  Gallison's  R.  178. 
Ihnu-n  V.  Lull,  2  Sumner's  R.  443.  Francis  v.  Ocean  Ins.  Co.,  6  Cow- 
en's  R.  Sims  V.  Sundnj  Mariners,  2  Peters's  Adm.  R.  Cheviot  v.  Brooks, 
1  Johns.  R.  3G1. 


238  DELIVERY  OF  CARGO. 

should  be  contributed  to  by  the  owner  of  the  cargo.^  If 
hy  any  negligence  in  the  performance  of  this  duty,  the 
proprietor  of  the  goods  sustain  damages,  the  master  is  re- 
sponsible to  the  extent  of  such  damage."  But  where  the 
owners  of  the  goods  had  neglected  to  furnish  the  master 
with  the  proper  and  customary  documents  to  show  their 
neutral  character,  and  he  had  to  depend  on  the  accuracy 
of  his  memory  to  support  the  claim  which  he  had  inter- 
posed in  the  Admiralty  Court  of  the  captors,  and  answered 
the  interrogatories  in  good  fiiith  and  to  the  best  of  his  recol- 
lection, it  was  held  that  no  negligence  could  be  imputed 
to  him,  even  if  it  appeared  that  the  prize  court  condemned 
the  property  on  the  disclosures  made  in  his  answer.^ 
What  is  required  of  the  master,  then,  is  that  he  should 
use  due  diligence,  by  all  the  fair  means  within  his  reach, 
to  substantiate  the  neutral  character  of  the  property.  But 
he  is  not  bound  to  violate  good  faith,  even  in  respect  to 
an  enemy,  to  protect  the  property  from  condemnation,  or 
to  employ  fraud  in  order  to  effect  that  object.'' 

12.  Delivery  of  the  cargo.  The  ship  having  arrived 
at  the  destination  of  the  cargo,  and  being  first  properly 
moored,^  the  master  is  to  deliver  the  goods  to  the  con- 
signee. It  seems  to  be  well  settled  in  England  and 
America,  that  a  delivery  at  any  usual  landing  place,  when 
there  are  no  special  directions  to  the  contrary,  is  all  that 
is  required  of  the  master,^  provided  he  gives  notice  to  the 

»  Willard  V.  Dorr,  3  Mason's  R.  161.     Leman  v.  Walker,  9  Mass.  R.  404. 
Smith  V.  Gilbert,  4  Day's  Cases,  105. 

*  Jones's  Bailm.  121.     Cheviot  v.  Brooks,  1  Johns.  R.  364. 
^  Cheviot  V.  Brooks,  1  Johns.  R.  364. 

*  Hannay  v.  Eve,  3  Cranch's  R.  243. 
6  Ord.  of  Wisbuy,  art.  36. 

fi  Hyde  v.  Trent,  and  Mers.  Nav.  Co.,  5  T.  R.  3S9.     Chickering  v.  Fowler, 
4  Pick.  371. 


DELIVERY  OF  CARGO.  239 

consignee,  that  he  may  come  and  take  them.^  But  if  the 
consignee  is  unable  or  unwilling  to  receive  them,  the 
master  cannot  discharge  himself  from  responsibility  by 
leaving  the  goods  on  the  wharf,  but  it  is  his  duty  to  take 
care  of  them  for  the  owner,"  unless  the  consignee  is  un- 
der an  obligation  to  receive  them,  in  which  case  they 
will  be  at  his  risk.^ 

It  has  been  held,  in  England,  that  if  the  consignee 
requires  the  master  to  deliver  the  goods  to  himself,  on 
board  the  ship,  and  not  to  land  them  on  the  wharf,  that 
the  master  must  obey  the  request ;  for  the  wharfinger 
cannot  insist  that  the  goods  shall  be  landed  on  his  wharf, 
though  the  vessel  be  moored  against  it.'* 

Until  some  such  delivery  as  above  indicated,  the  mas- 
ter remains  responsible  for  the  goods.  If  they  are  lost 
in  the  ship's  boat,  being  on  the  way  from  the  ship  to  the 
shore,  he  is  responsible,  unless  such  risk  is  expressly 
guarded  against  in  the  bill  of  lading.  But  if  the  owner 
receives  them  in  a  lighter  from  the  ship,  or  in  any  way 
takes  the  custody  of  them  before  they  are  landed,  the 
master's  responsibility  ceases.^ 

'  Strong  y.  Natalhj,  4  Bos.  and  Pul.   16.     Ganiettv.  Wilson,  5  B.  and 
Aid.  53.      Ostrandcr  v.  Drown,  15  Johns.  R.  39. 

*  Ostrandcr  v.  Drwm,  15  Johns.  R.  39.  Chickcring  v.  Fowler,  4  Pick. 
371.     Maycll  v.  Potter,  2  Johns.  Cas.  371. 

'  Chickenng  v.  Machay,  ut  supra. 

*  Syeds  V.  /%,  4  T.  R.  200. 

*  Strong  V.  NalftUij,  4  Bos.  and  Pul.  10.  Johnson  v.  Bmson,  1  B.  and 
Bing.  454.  The  full  consideration  of  this  subject  —  the  determination  of 
the  carrier's  risk  —  cannot  find  space  in  this  work.  The  reader  is  referred 
to  Story  on  Bailm.  sec.  532,  et  seq.  Abbot  on  Ship,  part  3,  ch.  3,  sec.  11. 
3  Kent's  Coinin.  p.  214. 


CHAPTER  III. 

OF    THE    master's    RELATION    TO    THE    FREIGHT. 

Freight,  in  the  general  legal  sense  of  the  term,  means 
all  rewards,  hire  or  compensation,  paid  for  the  use  of 
shii)s.'  In  this  sense,  it  includes  as  well  the  compensa- 
tion paid,  or  agreed  to  be  paid,  for  the  transportation  of 
passengers,  as  of  merchandise.  It  is  of  some  moment, 
at  the  present  day,  both  to  masters  and  mariners,  that 
this  definition  should  not  be  restrained  in  its  scope  to 
the  merely  common  acceptation  in  which  it  signifies  only 
the  compensation  for  the  carriage  of  goods  ;  since  great 
numbers  of  persons  are  now  employed  upon  ships,  whose 
freight,  in  this  latter  sense,  bears  a  small  j)roportion  to  the 
money  received  or  contracted  for  from  passengers,  and  in 
some  cases  might  be  insufficient  for  the  payment  of  the 
wages  due.  There  is  no  authority,  that  I  am  aware  of, 
for  the  limited  definition  which  would  exclude  those  in- 
terested in  the  freight,  from  the  same  rights  connected 
with  passage  money,  as  they  would  have  in  money 
received  or  earned  in  the  transportation  of  goods.     There 


*  Pothier,  Traite  de  Charte-Partie,  n.  I,  defines  freight  as  "  the  reward 
which  one  agrees  to  pay  for  the  liire  of  a  vessel."  Valiu  defines  it  as  "  ilie 
price  due  for  the  hire  of  a  ship,  or  for  the  transportation  of  merchandise." 
It  is  called  freight,  {fret)  in  the  Atlantic  —  no/w,  in  the  Mediterranean. 
Comm.  tome  i,  p.  639. 


MASTER'S   RELATION  TO  THE  FREIGHT.  241 

is,  however,  authority  for  the  broad  definition  above  given, 
in  respect  to  the  rights  of  seamen ;  ^  and  it  has  also  been 
held  that  passage  money  and  freight  are  governed  by  the 
same  rules,  as  between  the  passenger  or  freighter,  and 
the  ship-owner  and  master.-  So  too,  it  was  held  that  the 
master  may  detain  the  luggage  of  a  passenger,  for  the 
passage  money  which  is  to  be  considered  as  payable  in 
respect  of  the  person  and  his  baggage,  in  like  manner  as 
he  may  detain  the  goods  of  a  shipper  for  freight  due.^ 

Freight,  then,  being  the  earnings  of  the  ship,  the  mas- 
ter, as  the  general  agent  and  representative  of  the  owner, 
has  certain  powers  in  regard  to  it,  which  are  am^jle  for 
its  security  and  due  collection  *  and  as  the  special  cm- 
})loyer  of  the  ship,  in  m  hich  character  he  is,  to  some 
extent,  treated  by  the  law,''  he  has  certain  other  powers, 
\\liich  spring  from  tiiis  hitter  capacity,  as  well  as  from 
the  agency  with  which  he  is  clothed ;  and  finally,  as  the 
servant  of  the  owner,  having  performed  labor  in  his  be- 
half for  hire,  he  has  certain  other  relations  to  the  money 
of  his  employer,  \\\\\ch  the  law  has  established  for  the 
protection  of  his  compensation. 

1.    As  the  general   agent   and   representative  of  the 

'  Giles  V.  The  Ctjnthia,  1  Tetcrs's  Adm.  R.  206.  Howland  v.  The  La- 
vina.  Ibid.  120.  So  also,  the  Cunsolato,  in  defining  a  passenger  :  "  Tot  horn 
es  appclal  pclegti  qui  do  NOLir  dc  la  sua  persona  e  dc  roba  ijui  no  sia  mercadc- 
ria,  i  tot  hoin  qui  port  de  deu  quintars  en  avail,  dcu  donar  Nof.iT  dc  la  sua 
persona."  "  Every  man  is  called  a  passenger,  wlio  gives  fhkkjiit  for  his 
person  and  for  his  cfTccls  which  are  not  merchandise;  and  every  man 
who  carries  less  than  ten  quintals,  ought  to  pay  i-rf.I(;iit  for  his  person." 
Ch.  6S,  [113],  Pardessus,  tome  ii,  p.  115. 

•-  Mullmj  V.  Backer,  5  East's  R.  316.  Moffat  v.  E.  1.  Company,  10  East's 
R,  1CS.     Watson  v.  Dutjkinch,  3  Johns.  R.  335. 

»   Wolf  V.  Summers,  2  Camph.  N.  P.  11.  G31. 

*  Story's  Comm,  on  Agency,  sec.  IIG,  117. 

31 


242  MASTER  MAY  DETAIN  GOODS  FOR  FREIGHT. 

owner,  the  master  may  at  all  times  receive  tlie  frcii^lit  due, 
A\lunlier  the  eoiitract  was  made  by  the  owner  or  by  him- 
self;  and  a  payment  to  him  will  disehaii;e  the  goods  and 
those  who  may  be  liable  for  the  freight,  unless  notice 
should  be  given  by  the  owner,  or  unless  there  be  some 
sti})ulation  to  the  contrary,  in  the  contract.  This  au- 
thority results  from  the  nature  of  his  agency,  by  the  ap- 
pointment to  which  the  owner  has  conferred  upon  him  all 
the  powers  incident  to  the  conducting  of  the  usual  busi- 
ness of  the  ship.^ 

But  when  the  master  enters  into  the  contract  in  his 
o-vvn  name,  as  where  he  signs  the  bill  of  lading  or  charter- 
party,  he  is  then  in  a  stiH  more  intimate  relation  to  the 
freight.  Pothier  remarks  that,  in  this  case,  an  action  for  the 
freight  resides  in  the  person  of  the  master.^  This  agrees 
with  several  decisions  in  England,  in  which  it  has  been 
held  that  the  master  has  such  a  special  property  in  the 
ship,  that  he  may  bring  an  action  for  the  freight,  describ- 
ing the  ship  as  his  own,  and  that  he  is  not  a  mere  ser- 
vant entrusted  with  the  charge  of  it.^ 

2.  As  the  agent  of  the  ship-owner  and  to  secure  the 
payment  of  the  freight,  the  master  may  exercise  that  right 
which  the  ship-owner  enjoys  of  retaining  the  goods  until 
the  freight  is  paid,  and  may  enforce  this  lien  as  far  as  the 
law  permits  it  to  go,  after  the  goods  have  actually  left  his 
possession. 

The  general  right   of  the  ship-owner  to   retain   the 

'  Polhier,  Char te-Par tie,  n.  88,  ante,  Part  III,  ch.  i,  p.  167,  ct  seq. 

^  Pothier,  Charte-Partie,  n.  88. 

■■'  Shields  V.  Davis,  6  Taunt.  R.  65.  See  also  Blanch  v.  Solly,  8  Taunt. 
R.  89.  Williams  v.  Millington,  1  H.  Bl.  81,  84.  See  also  Story  on  Agency, 
sec.  116,  117. 


LlEiN   FOR  FREIGHT.  243 

goods  for  freight,  has   always  been   recognised   both   by 
the  maritime  and  the  common  law,^  and  the  lien  applies 
equally,  whether   the  goods  were  shipped  under  a  char- 
ter-party, or   by  bill  of  lading.^     But  the  lien   may  be 
waived  or  displaced.     It  is  waived,  when  the  delivery  of 
the  goods  is  by  the  charter-party  to  precede  the  payment, 
or  security  of  payment  of   freight ;    but,   on  the   other 
hand,  where  such  payment,  or  security  of  payment  of 
freight,  is  to  be  simultaneous  or  concurrent  with  the  de- 
livery, there  the  lien  exists  in  its  full  force.^     So  too,  if 
the  charter-party  is  silent  upon  the  point,  and  it  does  not 
appear  that  the  delivery  of  the  cargo  is  to  precede  the 
payment  of  freight,  the  lien  will  not  be  presumed   to  be 
waiyed-^     The  lien  will  be  displaced,  if,  instead  of  the 
letting  the  use  of  the  ship  to  freight,  the  vessel  itself  be 

'  Valin,  Cotnm.  tome  i,  p.  659,  655,  666.  Polliier,  Chaite-Partie,  n.  88, 
89,90.  SKent'sComm.  p.  220,  221.  Abbot  on  Ship,  part  3,  ch.  7.  The 
Volunteer  and  Cargo,  1  Sumner's  R.  551.  Certain  Logs  of  Mahogany,  2 
Sumner's  R.  589. 

*  Drinkualcr  V.  The  Freight  and  Cargo  of  the  Spartan,  Ware's  R.  155. 
Christie  v.  Lewis,  2  B.  and  B.  410. 

^  The  Volunteer  and  Cargo,  1  Sumner's  R.  569.  Yates  v.  Railston,  8 
Taunt.  R.  293.  Christie  v.  Lewis,  2  B.  and  B.  410.  Tate  v.  Meek,  8 
Taunt.  R.  280.  SaviUe  v.  Campion,  2  B.  and  Aid.  503.  Faith  v.  E.  L 
Co.,  4  B.  and  Aid.  630.     Grade  v.  Palmer,  8  Whealon's  R.  605. 

*  Abbot  on  Ship,  part  3,  ch.  1,  sec.  7,  p.  177,  and  cases  cited.  See  also 
The  Volunteer  and  Cargo,  1  Sumner's  R.  551,  557,  and  Certain  Logs  of 
Mahogany,  2  Sumner's  R.  589.  Both  these  elaborate  judgments  proceeded 
in  part  upon  the  ground  stated  in  the  text.  In  the  former,  it  was  held  that 
a  stipulation  in  tlic  charter-party  for  the  payment  of  frciglit  ten  daijs  after 
the  return  of  the  vcssfl,  is  not  inconsistent  with  a  lien;  among  other  rea- 
sons, because  non  constat  that  t/te  cargo  was  to  be  delivered  within  ten  days 
after  the  arrival.  In  the  latter  case,  upon  a  clause  in  the  charter-parly  that 
the  freight  should  be  paid  "  in  five  days  after  the  brig's  return  to  and  dis- 
chargi  in  Boston,"  it  was  held  that  the  word  discharge  merely  referred  W 
the  unlading,  and  not  to  the  delivery  of  the  cargo. 


'2\)>  LIEN   rOR  FREK^IT. 

let  to  liiiT,  and  \hc  (exclusive  possession  and  control  is 
given  iij)  to  the  ehaiterer  ;  because  the  charterer  tlien 
becomes  ow  ner  of  the  siiip  for  the  voyaG;e,  and  the  true 
ship-owner's  lien  |)asses  from  him  into  the  hands  of  the 
charterer.'  But,  on  the  other  hand,  if  the  vessel  is  navi- 
gatinl  at  the  e.\})ensc  of  the  general  owner,  and  by  his 
master  and  crew,  and  hv  retains  the  possession  and  man- 
agement of  her  dining  the  voyage,  then  tlie  lien  for 
freight  is  not  displaced,  because  the  general  owner  is 
deemed  owner  for  the  voyage,  notwithstanding  a  charter- 
party."  Especially  is  this  the  case  where  the  general 
owner  retains  a  part  of  the  ship  for  his  own  use  f  and, 
indeed,  if  the  intention  of  the  parties,  with  regard  to 
the  point,  who  is  to  be  deemed  owner  for  the  voyage, 
seems  to  be  doubtful  on  the  face  of  the  charter-party,  the 
lien  will  not  be  presumed  to  have  been  relinquished.'' 

The  exercise  of  this  right,  thus  to  retain  the  goods  for 
the  payment  of  freight,  has  also  been  uniformly  admitted  to 
reside  in  the  hands  of  the  master,  as  the  owner's  agent, 
bv  virtue  of  his  office,  whether  he  or  the  owner  made 
the  contract  by  which  the  goods  are  conveyed.^     But,  in 

'  Drinhvater  v.  The  Freight  and  Cargo  of  the  Spartan,  Ware's  R.  166. 
Christie  v.  Leiuis,  2  B.  and  B.  410.  The  Volunteer  and  Cargo,  1  Sumner's 
R.  551.     Certain  Logs  of  Mahogany,  2  Sumner's  R.  589. 

*  The  Volunteer  and  Cargo,  1  Sumner's  R.  551.  Certain  Logs  of  Ma- 
hogany, 2  Sumner's  R.  589.  Macadicr  v.  Chesapeake  Ins.  Co.,  8  Cranch's 
R.  49.  Mclntyre  v.  Browne,  1  Johns.  R.  229.  Grade  v.  Palmer,  8  Whea- 
ton's  R.  632. 

'   The  Volunteer  and  Cargo,  1  Sumner's  R.  551. 

*  Certain  Logs  of  Mahogany.  2  Sumner's  R.  689.  Chandler  v.  Belden, 
18  Johns.  R.  157.  Clarhson  v.  Edcs,  4  Cowen's  R.  470.  Pickman  v.  Wood, 
6  Pick.  R.  248.  Drinkwatcr  v.  The  Freight,  etc.,  of  the  Spartan,  Ware's 
R.  155. 

*  Valin,  Coram,  tome  i,  p.  659,  665,  666.     L'Ord.  de  la  Marine,  liv.  3, 


WHEN  FULL  FREIGHT  IS  DUE.  245 

order  to  its  exercise,  it  is  necessary  not  only  that  the 
goods  should  have  arrived  at  the  place  of  their  destina- 
tion, but  thev  must  be  taken  out  of  the  vessel,  and  the 
master  must  be  ready  to  deliver  them  on  payment  or  ten- 
der of  the  freight.^  It  is  quite  clear,  upon  authority,  that 
the  unlivery  of  the  cargo  is,  by  the  maritime  law,  a  con- 
dition precedent  to  the  perfect  right  to  freight  and  the 
right  to  detain  for  nonpayment ;  and  the  reason  is  that 
the  merchant  may  have  an  o})portunity  to  examine  the 
goods,  before  he  makes  himself  liable  at  all  events  for  the 
freight.^ 

The  general  rule,  then,  to  entide  the  master,  or  owner, 
to  demand  the  full  freight  is,  that  the  goods  must  have 


til.  3,  art.  17,  23,  24.  Pothier,  Charte-Partie,  n.  88,  89,  90.  Abbot  on 
Ship,  part  3,  ch.  7,  sec.  4.  Tapley  v.  Martins,  8  T.  R.  451.  Christy  v. 
Row,  1  Taunton,  300.  Barker  v.  Haven,  17  Johns.  R.  234.  Poland  et  ah 
V.  The  Freight,  A;c.,  of  the  Spartan,  Ware's  R.  149.  When  the  regula- 
tions of  the  revenue  require  the  goods  to  be  landed  and  deposited  in  a  pub- 
lic warehouse,  the  master  may  enter  them  in  his  own  name  and  preserve 
the  lien.     3  Kent's  Comm.  Lect.  47,  p.  220. 

'  Abbot  on  Ship,  part  3,  ch.  7,  sec.  1,  and  p.  273,  note  2,  by  Story.  3 
Kent's  Comm.  Lect.  47,  p.  219.  Lane  v.  Penniman,  4  Mass.  R.  91.  Brad- 
street  V.  Baldwin,  11  Mass.  R.  229.  Certain  Logs  of  Mahogany,  2  Sum- 
ner's R.  589. 

*  L'Ord.  dela  Marine,  liv.  3,  tit.  3,  art.  23.  Valin  Comm.  tome  i,  p.665. 
Code  Commerce,  art.  306.  Sautayra,  [sur  le  Code,  etc.)  p.  191.  Abbot  on 
Ship,  part  3,  ch.  3,  p.  217,  248.  See  also  the  case  of  Certain  Logs  of  Ma- 
hogany, 2  Sumner's  R.  5S9.  The  master  may  detain  any  part  of  the  mer- 
chandise for  the  freight  of  all  that  is  consigned  to  the  same  person  ;  so  that, 
if  he  make  a  delivery  of  part  of  the  goods  to  the  consignee,  he  may  detain 
the  residue  even  against  a  purchaser,  until  payment  of  the  freight  of  the 
whole.  I5ut  if  the  goods  are  sold  to  different  persons  by  the  consignee,  and 
part  is  delivered,  the  master  has  not  a  lien  on  the  residue  so  as  to  compel 
one  purchaser  to  pay  freight  for  what  has  been  delivered  to  another  pur- 
chaser, but  only  for  what  has  been  purchased  by  himself.  Abliot  on  Ship. 
part  3,  ch.  3,  p.  247,  and  notes  by  Slory. 


216  WHEN   FULL  FREIGHT  IS  DUE. 

been  carried  to  their  place  of  destination,  and  be  ready 
for  delivery."  To  this  rnle  there  ar(!  ordinarily  two  ex- 
ceptions ;  first,  ^\here  the  delivery  is  prevented  by  the  ne- 
glect or  dcl'ault  of  the  owner  of  the  goods,  as  if  they  are 
attached  or  seized  for  his  defanlt  ;^  second,  where  the  gov- 
ernment of  the  })lace  refuse  permission  to  land  the  goods.^ 
]\Ir.  .Justice  Story  has  recently  said,  however,  that  in  his 
opinion,  "  the  whole  of  the  cases  in  which  the  full  freight 
is,  u})on  the  ordinary  principles  of  the  commercial  law, 
due,  notwithstanding  the  non-arrival  of  the  goods  at  the 
port  of  destination,  may  be  reduced  to  the  single  state- 
ment, that  the  non-arrival  has  been  occasioned  by  no  de- 
fault or  inability  of  the  carrier-ship,  but  has  been  occa- 
sioned by  the  default  or  waiver  of  the  merchant  shipper. 
In  the  former  case,  the  merchant  shipper  cannot  avail 
himself  of  his  own  default  to  escape  the  payment  of 
freight ;  in  the  latter  case,  he  dispenses  with  the  entire 
fulfilment  of  the  original  contract,  for  his  own  interest 
and  purposes.  Thus,  for  example,  if  the  goods  be  seized 
or  detained  at  an  intermediate  port  for  the  illegal  conduct, 
or  wrongful  act  of  the  shi])per,  or  if,  at  such  intermediate 
port,  he  voluntarily  insists  upon  receiving  and  does  re- 
ceive his  goods,  the  carrier-ship  being  ready  and  able  to 
carry  them  to  their  destination,  there  can  be  no  doubt 
that  full  freight  is  due  for  the  whole  voyage."  "* 

'  The  Ship  Nathaniel  Hooper,  3  Sumner's  R.  542.  Abbot  on  Ship,  part  3, 
ch.  7,  sec.  1.  3  Kent's  Comm.  Lect.  47,  p.  219.  Case  v.  Baltimore  Ins. 
Co.,  7  Cranch's  R.  358,  362. 

^  Bradstreet  v.  Baldwin,  11  Mass.  R.  229.  Palmer  v.  Lorillard,  16  Johns. 
R.  348.      The  Ship  Nathaniel  Hooper,  3  Sunnner's  R.  542. 

'  UOrd.  de  la  Marine,  liv.  3,  tit.  3,  art.  15.  Code  de  Commerce,  art.  299. 
Morgan  v.  Ins.  Co.  of  North  America,  4  Dal.  R.  455. 

*  The  Ship  Nathaniel  Hooper,  3  Sumner's  R.  542.   There  is  another  class 


WHEN  FULL  FREIGHT  IS  DUE.  247 

There  are  two  other  cases,  in  which  the  master,  being 
temporarily  restrained  from  performing  his  contract,  may 
detain  the  goods  until  such  temporary  restraint  is  removed, 
and  then  demand  the  full  freight,  on  delivery  of  the 
goods.  Thus  where  the  vessel  is  detained  by  an  embargo 
at  the  port  of  departure^  or  in  the  course  of  the  voyage, 
the  master  may  wait  till  the  embargo  is  removed,  and  then 
carry  the  cargo  on  to  its  place  of  destination ;  and  if  the 
owner  of  the  cargo  insists  on  receiving  it  short  of  the  port 
of  destination,  he  must  pay  the  full  freight.'  So  too,  in 
the  case  of  a  blockade,  or  hostile  investment  of  the 
port  of  departure,  after  the  voyage  has  actually  com- 
menced, the  contract  of  aifreightment  is  not  dissolved. 
The  master  may  retain  the  goods  until  he  can  prosecute 
the  voyage  with  safety ;  and  he  is  not  bound  to  sur- 
render them  to  the  proprietor,  unless  he  is  tendered  his 
full  freie;ht.-  The  reason  in  both  these  cases  is,  that  the 
impediment  is  temporary,  and  does  not  break  up  the 
voyage  by  rendering  the  performance  of  the  contract  im- 
possible. If,  however,  the  cargo  be  of  such  a  perishable 
nature,  that  it  will  not  endure  the  delay  of  the  embargo 
or  blockade  at  the  port  of  departure.  Sir  William  Scott 


of  cases  wlicrc  the  whole  freight  is  held  to  be  due  —  cases  of  capture  by 
an  enemy  —  upon  the  peculiar  principles  of  prize  law,  acting  on  the  maxim 
that  capture  is  delivery.  See  The  Race-Horse,  3  Rob.  Adni.  R.  101.  The 
Mnrtim,  3  Ibid.  106.  The  Hoffrung,  G  Ibid.  231.  See  also  an  analysis  of 
these  cases  and  their  bearing  on  the  ordinary  cases  of  claim  for  full  freight, 
in  The  Nnthaincl  Iloojirr,  ubi  supra. 

'  Iladlnj  V.  Clarke,  8  T.  R.  259.  M' Bride  v.  Mar.  Ins.  Co.,  5  Johns.  R. 
308.     naijhrs  V.  Fclhjplace,  7  Mass.  R.  325. 

»  Palr/ur  v.  Lortll.ml ,  10  Johns.  R.  348.  IJOrd.  dc  la  Murine,  liv.  3,  tit.  3, 
art.  15,  and  Valin,  C'omni.  tome  i,  C5G,  057.  I'othicr,  Charlc-Partic,a.  09, 
100,  101. 


248  CASES  OK   riU)   HATA    riJF.IGHT. 

has  hold  that  no  froi^ht  is  due,  as  it  is  tluMi  impossible 
to  I'liUil  tli(>  contract.'  The  French  \\rit(Ms  on  maritime 
law  lay  (low  II  ilie  same  principle.-  lint  if  (lie  voyage 
be  broken  up,  after  its  coinmencement,  by  war,  or  inter- 
diction of  commerce  with  the  })lace  of  destination,  the 
contract  is  dissolved,  and  no  freight  is  earned.^ 

Such  are  the  })rineiples  which  govern  the  right  to 
demand  a  full  freight.  What,  then,  are  the  cases  in 
■which  a  pro  rata,  or  ])roj)ortional  freight  may  be  de- 
manded ?  The  general  principle  of  the  maritime  law  is, 
that  the  contract  for  the  conveyance  of  merchandise  on 
a  voyage,  is  in  its  nature  an  entire  contract,  and  unless 
it  be  completely  performed  by  the  delivery  of  the  goods 
at  the  place  of  destination,  no  freight  is  due  ;  for  a  partial 
conveyance  is  not  within  the  terms  or  the  intent  of  the 
contract.^  Thus,  w^e  have  already  seen,  that  where  the 
ship  becomes  innavigable,  the  master  is  bound  to  repair 
it,  or  to  procure  another  vessel,  the  freighter  being  bound 

'  The  Isabella,  4  Rob.  Adm.  R.  77. 

"  Valin,  Comm.  tome,  i,  p.  628.     Pothier  Charte-Partie,  n.  102. 

'  Scott  V.  LMy,  2  Johns.  R.  336.  The  Hiram,  3  Rob.  Adm.  R.  180. 
Liddard  v.  Lopes,  10  East's  R.  526.  The  French  rule  is  different.  By  the 
Ordinance,  liv.  3,  tit.  3,  art.  15,  it  is  provided  that  where,  after  the  voyage 
is  commenced,  commerce  is  prohibited  by  war  or  otherwise,  with  the  coun- 
try to  which  the  vessel  is  destined,  and  the  ship  is  obliged  to  return  with 
the  cargo,  the  outward  freight  is  still  due.  But  if  the  execution  of  the  con- 
tract is  only  retarded,  the  parties  by  the  same  law  were  to  wait  until  the 
obstacle  is  removed.  As,  if  the  port  to  which  the  vessel  is  destined  be  only 
closed,  by  an  order  of  the  prince,  or  by  a  blockade,  or  the  vessel  be  arrested 
by  a  vis  major,  both  parties  are  bound  to  wait  for  the  removal  of  the  impedi- 
ment, without  damage  on  either  side.  UOrd  dc  la  Marine,  liv.  3,  tit.  1, 
art.  8.  Valin,  Comm.  tome  i,  617.  Vo\\\\cT,_Charte-Partie,  n.  101. 

*  The  Ship  Nathaniel  Hooper,  3  Sumner's  R.  Post  et  al.  v.  Robertson, 
1  Johns.  R.  24.  Caze  v.  Baltimore  Ins.  Co.,  7  Cranch's  R.  .358.  Cook  v. 
Jennings,  7  T.B..3SI.  Abbot  on  Shipping,  part  3,  ch.  7,  sec.  1,  p.  273. 
3  Kent's  Coram.  Lect.  47,  p.  228. 


FREIGHT  MA^  BE  HYPOTHECATED.  249 

to  wait  a  reasonable  time  for  this  purpose  :  *  and  this  is 
necessary  to  entitle  the  master  to  any  freight.-^  But  if 
the  ship  is  forced  into  an  intermediate  port,  and  is  unable 
to  prosecute  the  voyage,  and  the  owner  of  the  goods 
voluntarily  accepts  them,  or  insists  on  their  being  deliv- 
ed  up  to  him,  the  law  implies  a  new  contract,  viz.  —  to 
pay  freight  in  the  i)roportion  of  the  voyage  performed.^ 

The  master  may  hypothecate  the  freight  by  a  bottomry 
bond,  under  the  same  circumstances  of  necessity  in 
which  he  is  allowed  to  give  that  security  on  the  ship 
itself.^  Together  with  the  ship,  it  is  to  be  hypothecated 
before  the  cargo  :  for  the  master  is  not  authorized  to  touch 
the  cargo,  unless  he  cannot  obtain  the  necessary  supplies, 
upon  the  credit  of  the  ship  and  freight.  And  it  seems 
that  if  the  freight  happened  to  be  omitted  in  the  literal 
terms  of  the  bond,  it  would  still  be  liable,  when  the  bond 
comes  to  be  enforced,  to  the  extent  of  its  amount,  al- 


'  ^n^^,  Part  III,  ch.  2. 

^  Luke  V.  Lydc,  2  Burr.  SS9.  Schiefflin  v.  N.  York  Exchg.  Ins.  Co.,  9 
Johns.  R.  21.  Scarlc  v.  Scovell,  4  Johns.  Ch.  R.  218.  Clark  v.  Mass.  F. 
if  Mar.  Ins.  Co.,  2  Tick.  R.  104.  Hunter  v.  Prinsep,  10  East's  R.  394. 
Mumford  v.  Com.  Ins.  Co.,  5  Johns.  R.  262.  Sallus  v.  Ocean  Ins.  Co.,  12 
Johns.  R.  112.  Treadicell  v.  Union  Ins.  Co.,  G  Cowen's  R.  270.  The  Ship 
Nathaniel  Hooper,  3  Sumner's  R.  542. 

'  Laws  of  Olrron,  art.  4,  Pardessus  1,  325.  V  Ord  de  la  Marine,  liv.  3,  tit. 
3,  art.  21, 22.  Luke  v.  Lydc,  2  Burr.  883.  Cooke  v.  Jennings,  7  T.  R.  381. 
Hunter  v.  Prinsep,  10  East's  R.  378.  Liddard  v.  Lopes,  10  Ibid.  526.  Rob' 
insonv.  Mar.  Ins.  Co.,  2  Johns.  R.  323.  Caze  v.  Bulfimorc  Ins.  Co.,  7 
Cranch's  R.  353.  The  Ship  Nathaniel  Hooper,  3  Sumner's  R.  542.  Coffin  v. 
Storer,  5  Mass.  R.  252.  Dorr  v.  Neio  Eng.  Mar.  Ins.  Co.,  4  Mass.  R.  221, 
Portland  v.  StuObs,  G  Mass.  R.  420.     Griggs  v.  Austin,  3  Pick.  R.  20. 

*  The  Packet,  3  Mason's  R.  255.  The  Zephyr,  Ibid.  341.  Murray  v. 
Lazarus,  1  Paine's  R.  572.  The  Gralitudine,  3  Rob.  Achn.  R.  210.  The 
Nelson,  1  llagg.  Adm.  R.  1G9.  The  Augusta,  1  Dods.  Adiii.  R.  2S3.  The 
Jacob,  4  Rob.  Adin.  R.  94.     As  to  the  ship,  sec  ante  p.  176,  ct  seq. 

32 


250  FREIGHT  INCLUDED  IN  BOTTOMRY  BOND. 

llioui2,li  tlio  cargo  alono  li;id  been  made  immediately 
answerable  to  the  forei<!;n  lender,  who  has  nolliiiii;;  to  do 
with  averafi;es  of  any  kind.' 

Where  freij^ht  is  })l(Hlged  in  a  bottomry  bond,  it  means 
the  freight  of  tlie  whole  voyage,  and  not  the  freight  of 
that  part  of  the  voyage  unperformed  at  the  time  of  giving 
the  bottomry  bond.^  So  too,  it  seems  that  freight  made 
in  a  subsequent  voyage  may  be  jjursued,  if  the  owner  has 
appropriated  the  freight  of  the  first  voyage,  before  the 
bottomry  bond  holder  could  reach  it ;  the  court  of  Ad- 
miralty exercising  its  equity  jurisdiction  for  this  purpose.^ 
And  where  the  freight  to  be  made  on  a  voyage  is  pledged 
in  a  bottomry  bond,  the  freight  earned  from  sub-shippers 
of  goods,  by  permission  of  the  charterers  of  the  whole 
ship,  is  liable  as  against  them,  in  payment  of  the  bond 
given  at  the  port  of  the  charterers,  for  advances  made 
subsequently  to  the  charter-party." 

The  master's  lien  on  the  freight  for  his  wages,  ad- 
vances and  expenses  will  be  considered  in  the  next 
chapter. 


'  The  Gratitudinc,  3  Rob.  Adra.  R.  240. 

*  The  Zephjr,  3  Mason's  R.  341. 
3  Tlie  Jacob,  4  Rob.  Adm.  R.  245. 

*  The  Eliza,  3  Hagg.  Adm.  R.  87. 


CHAPTER  IV. 

OF     THE     master's    WAGES,    DISBURSEMENTS    AND    AD- 
VANCES. 

As  the  law  has  distinguished  the  case  of  the  master  from 
that  of  all  the  other  mariners,  in  respect  to  his  wages, 
and  as  in  the  course  of  his  agency  the  ship-owner  often 
becomes  indebted  to  him  for  advances  made  or  liabili- 
ties incurred  on  account  of  the  ship,  it  is  proper  to  treat 
of  these  topics  separately  from  the  general  case  of  the 
mariner.     And  first 

As  to  his  wages.  The  master  is  ordinarily  hired  by 
signing  the  shipping  articles,  which  contain  his  contract 
in  respect  to  wages  and  the  voyage,  as  well  as  that  of 
the  other  seamen.  The  hiring  may  however  be  by  any 
other  writing,  or  by  parol. ^  But  when  a  rate  of  wages 
is  specified  in  the  articles  against  the  name  of  the  master, 
they  are  pi 'una  facie  evidence  of  his  contract,  and  are  as 
much  to  be  resorted  to  in  any  controversy  between  him 
and  his  owner,  as  between  the  owner  and  the  seamen 
generally.^ 

I  Moore  v.  Jones,  15  Mass.  R.  424. 

•  WiUard  V.  Dorr,  3  Mason's  R.  1G8.  The  articles  may  be  controverted 
by  ofTering  evidence  of  fraud,  mistake,  or  interpolation.  I5ut  in  tlie  alisencc 
of  such  evidence,  they  are  presumed  to  be  as  well  known  to  the  owner  as 
the  master.     IbiJ. 


'252  MASTER  HAS  KO  LIF-IM  ON  T[IE  SHIP. 

By  the  law  of  Enj^limd,  and  of  lliis  country,  the  mas- 
ter has  no  lien  on  tlu;  sliip  for  his  wages.  Tlie  reason 
laid  (low  11  ill  the  hooks  of  the  conniion  law  is,  that  al- 
tliough  mariners  are  sup])osed  to  contract  on  the  credit 
of  the  siiij),  the  master's  contract  is  altogether  of  a  per- 
sonal nature,  on  the  credit  of  his  owner.^  Bnt  this,  as 
was  ohserved  hy  one  of  our  learned  Admiralty  judges,  is 
little  more  than  another  form  of  stating  the  same  fact.^ 
If  there  is  any  reason  for  the  distinction  thus  made  be- 
tween the  master  and  the  other  mariners,  all  of  whom 
render  the  same  kind  of  service,  it  must  be  founded 
purely  in  considerations  of  policy.  The  reason  that  the 
master's  contract  is  made  by  personal  treaty  with  the 
owner,  while  that  of  the  seamen  is  made  with  the  mas- 
ter, on  the  credit  of  the  ship,  does  not  satisfy  all  cases. 
The  sailor's  contract  may  be  made  personally  with  the 
owner,  and  yet  his  lien,  given  him  by  the  policy  of  the 
law,  could  not  be  questioned.  So  on  the  other  hand,  a 
party  may  become  master,  in  a  remote  part  of  the  world, 
and  perform  all  the  duties  of  the  office  and  be  entitled  to 
a  quantum  meruit  for  his  services,  by  nothing  more  than 
an  implied  contract  with  the  owner,  and  still  have  no  lien 
for  his  services  as  master.^ 

There  is  no  reason,  in  principle,  why  the  master  should 
not  have  a  lien  on  the  ship  for  his  wages,  apart  from  con- 
siderations of  policy.  His  contract  is  for  a  maritime  ser- 
vice ;  it  is  of  the  same  general  nature,  to  a  certain  extent, 
as  that  of  the  other  mariners,  though  it  embraces  other 

>  12  Mod.  R.  405.    See  also  Read  v.  Chapman,  2  Sh.  937.    Ragg  v.  King, 
Ibid.  858.     Clay  v.  Sudgrave,  Salk.  33.     1  Ld.  Rayra.  576.     Garth.  518. 
*  Ware's  R.  p.  161. 
3  The  Favorite,  2  Rob.  Adm.  R.  192.     The  George,  1  Sumner's  R.  151. 


^VHETHER  MASTER'S  WAGES  ARE  A  LIEN  ON  THE  FREIGHT.     253 

and  further  duties.  Moreover,  his  case  is  not  univer- 
sally made  an  exception  by  the  general  maritime  law.^ 
But  it  has  been  uniformly  held  in  England  that  he 
has  no  lien  on  the  ship  for  his  wages,^  and  the  rule 
has  always  been  followed  and  acquiesced  in,  in  this  coun- 
try.^ Mr.  Chancellor  Kent  says,  that  the  rule  has  its 
foundation  in  policy,  and  the  benefit  of  navigation  ;  and 
that  it  would  be  a  great  inconvenience,  if,  on  the  change 
of  a  captain  for  misbehaviour,  or  any  other  reason,  he 
would  be  cntided  to  keep  possession  of  the  ship  until  he 
was  paid,  or  to  enfore  the  lien  while  abroad,  and  compel 
a  sacrifice  of  the  ship.^ 

The  next  question  that  arises  is,  whether  the  master 
has  any  lien  on  the  freight,  for  his  wages.  The  English 
authorities,  before  cited,  which  deny  his  lien  on  the  ship, 
also  deny  it  upon  the  freight.^  In  this  country,  this 
direct  question  has  been  adjudicated  in  two  cases  only, 
that  I  am  aware  of.  Most  of  the  cases  in  which  the 
master's  lien  on  freight,  for  advances  made  or  liabilities 
incurred  by  him  in  the  course  of  the  voyage,  is  considered, 
do  not  include  his  wages,  expressly.*^     But  in  Ingcrsoll  v. 

'  VOrd.  de  la  Marine,  liv.  3,  tit.  4,  art.  8,  21.  Code  de  Commerce,  art. 
259,  272. 

'  See  the  earlier  cases  cited  ante,  p.  252,  n.  1.  Also  WiUiins  v.  Cannichael, 
Dougl.  R.  ini.  Ilussry  V.  Christie,  9  East's  R.  426.  Smilh  v.  Plummcr,  1 
B.  and  A.  575.  Atkinson  v.  Cotesworth,  5  D.  and  R.  552.  The  Favorite,  2 
Rob.  Adm.  R.  192. 

»  The  Ship  Packet,  3  Mason's  R.  255.  WiUard  v.  Dorr,  3  Ibid.  91,  IGl . 
The  Steamboat  Orleans,  II  Tetcrs's  S.  C.  R.  175.  The  Ship  Grand  Turk, 
1  Paino's  R.  73.  Fishery.  Willing,  8  Serg.  and  R.  118.  Drinkwatcr  v. 
The  Spartan,  Ware's  R.  149. 

*  3  Kent's  Com.  p.  lOG,  edit.  1840. 

*  Ante,  p.  252,  note  1,  and  note  2  of  this  page. 

«  The  Ship  Packet,  3  Mason's  R.  255.  iMnc  V.  Pcniiiman,  4  Mass.  R. 
92.     Lewis   v.    JIancocck,   11    Ibid.   72.     Comng  v.   Snow,  11    Ibid.  415. 


254        RiAsTr.irs  lU'.Mr.DY  lou  wvcf.s  in  personam. 

1(111  liofihrlin,  tlio  Supreme  Court  of  New  York  included 
the  wages  of  tlie  master  among  tlie  items  for  which  he 
was  hekl  to  have  a  lien  on  the  freight.'  But  this,  as  to 
the  wages,  was  overruled  in  the  Court  of  Errors.-  Judge 
Ware,  in  the  District  Court  for  Maine,  has  supported  the 
lien  on  freight,  for  wages.  He  puts  it  on  the  ground  of 
analogy  with  his  lien  on  the  freight  for  advances,  which 
the  prior  cases  had  settled.  "  Why  does  not,"  he  asks, 
"  his  prior  right  for  his  wages  rest  on  as  good  ground  as 
for  his  liabilities  or  disbursements  ?  The  money  is  as 
much  due  to  him  in  one  case  as  the  other,  and  the  credit 
has  in  each  grown  out  of  the  same  service,  a  service 
which  has  contributed  to  create  the  fund  against  which 
his  claim  is  made.  His  wages  are  as  much  a  charge  on 
the  earnings  of  the  ship  as  those  of  the  seamen,  or  as  the 
advances  which  he  makes  for  incidental  expenses."  ^ 

This  reasoning  seems  to  be  just.  But  ihe  question 
may  be  considered  as  one  that  remains  to  be  definitely 
settled  in  this  country. 

The  master's  remedy  for  his  wages  against  the  owner 

ShawY.  Gooking,  7  New  Hamp.  R.  19.     Milwardv.  Hallct,  2  Caine'sR.  77. 

'  Ingeisoll  V.  Van  Bokkdiii,  7  Cowen's  R.  670. 

^  5  Wendell's  R.  314. 

'  Drinhvater  v.  The  Spartan,  Ware's  R.  163.  In  this  case,  the  charter- 
ers, who  were  owners  for  the  voyage,  and  hired  the  master,  had  failed 
before  the  termination  of  the  voyage,  and  transferred  all  their  property  to 
assignees  to  pay  their  creditors,  including  the  cargo  belonging  to  them- 
selves on  board  the  ship,  and  it  appeared  that  the  freight  due  on  the  mer- 
chandise taken  on  freight  was  exhausted  by  prior  claims,  the  seamen  hav- 
ing enforced  their  lien  upon  it  by  a  previous  libel.  This  brought  up  the 
question,  whether  the  master's  lien  for  his  wages  extended  to  the  merchan- 
dise of  the  owners,  which  he  had  brought  home.  The  court  put  the  deci- 
sion on  the  peculiar  facts  of  the  case,  which  clearly  gave  an  equitable  lien  ; 
and  sitting  in  a  court  bound  to  decide  ex  aquo  el  bono,  the  learned  judge 
decreed  in  favor  of  the  lien. 


MASTERS    LIEN   FOR    DISBURSEiMENTS,    ETC.  255 

personally  is  the  same  as  that  of  the  other  mariners  ;  and 
the  question  of  who  is  to  be  considered  as  owner,  and 
the  other  general  principles  of  personal  remedy  for  the 
mariner,  will  be  treated  of  in  a  subsequent  part  of  this 
work. 

The  Circuit  Court  for  Massachusetts  District  have 
held  that  the  master  is  entitled  to  his  wages  in  case  of 
capture,  up  to  the  time  of  condemnation,  if  he  remains 
by  the  ship,  to  attend  to  the  interests  of  all  concerned  in 
her,  and  that  such  wages  are  ultimately  to  be  borne  as 
general  average,  by  all  the  parties  in  interest ;  that  his 
duties  do  not  entirely  cease  even  with  condemnation  ;  if 
he  deems  an  appeal  expedient,  he  is  bound  to  enter  it, 
and  may  remain  for  that  purpose,  and  is  entitled  to  com- 
pensation for  his  services.^ 

As  to  his  advances  made  and  liabilities  incurred  for 
the  ship,  during  the  voyage,  the  English  authorities  at 
common  law,  with  considerable  uniformity,  deny  the 
master  any  lien  upon  either  the  ship,  freight,  or  cargo.^ 
At  the  same  time  the  leaning  of  the  Courts  of  Equity 
seems  to  be  in  favor  of  the  lien,  at  least  upon  the 
freight.^ 

The  Supreme  Court  of  Massachusetts  have  affirmed 
the  master's  lien  on  the  freight,  for  the  purpose  of  cover- 
ing all  necessary  disbursements  made  by  him,  or  respon- 

'  Willard  v.  Dorr,  3  Mason's  R.  ICl.  See  also  Moore  v.  Jones,  15 
Mass.  R.  424. 

»  Wtlkins  V.  Carmichad,  Dougl.  R.  101.  Ilusanj  v.  Christie,  9  East's  R. 
426.  Smith  v.  Plummcr,  1  B.  and  A.  575.  Atkinson  v.  Colcstcorih,  5  D. 
and  R.  552. 

^  HussK)j  V.  Christie,  13  Ves.  jr.  594.  Ex  parte  Jlalhctt,  3  Ves.  and 
Bearaes,  134.     Ptcrson  v.  Robinson,  3  Swanst.  R.  139,  note. 


256  MASTERS    LIEiN    I'OU    DISBURSEMENTS,    ETC. 

sihilitics  incunod,  on  account  of  llio  ship.'  "  lie  may 
be  understood,"  they  say,  "as  against  the  owner  himself, 
to  have  the  same  right  in  the  freight  money,  whicli  a 
fiictor  or  consignee  has  in  the  goods  of  the  principal  or 
consignor,  for  whom  money  has  been  advanced,  or  any 
liabihties  have  been  incurred,  in  consequence  of  the  em- 
ployment or  consignment.  The  master  of  a  vessel  in  a 
foreign  port,  and  at  home  after  a  voyage  performed,  has 
many  liabilities  from  which  he  may  have  cause  to  protect 
himself,  by  insisting  on  his  right  to  collect  the  freight 
money  ;  and  he  is  to  be  considered  as  having  an  implied 
promise  from  the  freighters  to  pay  it  to  him."  ^ 

The  Supreme  Court  of  New  York  sanctioned  the  same 
principle,  in  a  case  where  the  consignee  had  paid  over 
the  freight  to  the  ship-owner,  and  the  master  recovered  in 
an  action  of  trover  the  amount  of  his  advances,  or  liabili- 
ties, against  the  party  with  whom  he  (the  master)  had 
deposited  the  goods  to  be  kept  for  him,  but  who  had  de- 
livered them  over  to  the  consignee  by  direction  of  the 
ship-owner.^ 

In  the  Admiralty  Courts,  Judge  Peters,  in  the  District 
Court  for  Pennsylvania,  held  that  the  master's  disburse- 
ments abroad  were  a  lien  on  the  proceeds  of  the  ship 
in  court. ^  The  Circuit  Court  of  the  United  States 
for   Massachusetts    District,    held  in    the   case  of    The 


*  Lane  v.  Pcnniman,  4  Mass.  R.  92.     Letvis  v.  IJancocli,  11  Ibid.  72. 
Cowing  V.  Snow,  11  Ibid.  415.     Goodrich  v.  Lord,  10  Ibid.  487. 

*  Lewis  V.  Hancock,  supra. 

3  Ingcrsoll  V.  Van  Dokkelin,  7  Cow.  R.  670.     S.  C.  5  Wendell's  R.  314. 
See  also  Shaw  v.  Gooking,  7  New  Hamp.  R.  19. 

*  Gardner  v.    Ship   Neiv   Jcrxeij,    1    Peters's  Adm.  R.  227.     See    also 
Dulgin  V.  Sloop  Rainbmv,  Bee's  R.  116. 


MASTER'S  LIEN  ON  FREIGHT.  257 

Ship  Packet,  that  the  master  had  a  lien  on  the  freight 
for  all  advances  made  by  him  on  account  of  the  ship,  and 
that  he  might  intercept  it,  when  earned,  to  reimburse 
himself.  The  court  noticed  the  doctrine  of  the  maritime 
law  of  foreign  countries,  giving  a  lien  on  the  ship  for  such 
advances,  and  said  there  was  much  reason  for  upholding 
it.^  Judge  Ware  proceeded  upon  the  same  doctrine,  as 
to  the  freight,  in  Drinkwater  v.  The  Spartan^ 

Whatever  uncertainty  there  may  be  respecting  the 
master's  right  to  intercept  the  freight,  as  against  his 
owner,  there  is  no  doubt  of  his  right  to  retain  it,  when 
once  received  by  him,  to  reimburse  himself  as  a  general 
creditor  of  the  owner,  either  against  the  owner  himself, 
or  his  assignee,  where  the  assignment  has  not  been  made 
until  after  the  freight  is  earned  and  received  by  him  and 
due  notice  of  his  claim  has  been  given.^  Indeed,  the 
case  of  Drinkwater  v.  The  Spartan  goes  much  further 
than  this,  inasmuch  as  the  freight  had  not  been  earned, 
but  the  vessel  was  at  sea,  when  the  assignment  was 
made. 

The  rights  of  the  master,  as  against  his  owner,  in  re- 
spect to  the  topics  above  considered,  remain  for  further 
elucidation  than  they  have  yet  received.  We  have  seen, 
in  a  former  cha|)lcr,  the  tendency  to  the  doctrine  that  if 
the  master  has  funds  of  his  own,  or  can  procure  them  on 
his  own  credit,  he  is  bound  to  a])|)ly  them  to  the  ship's 
necessities,  before  he  can  resort   to   liypotliecation  of  the 


'  3  Mason's  R.  255. 

»  Ware's  R.  163.     See  also  The  Ship  Grand  Turk,  1  Paine's  R.  7G. 

'  Hodgson  V.  Bulls,  3  Cranch's  R.  140. 

33 


258  MASTER'S  LIEN. 

sliip  itsolf.^  If  this  doctrino  is  to  be  considered  as  finally 
established  in  the  maritime  law  —  and  it  is  certainly  as- 
serted with  an  imposing  weight  ol  authority — it  should 
seem  to  rest  on  the  ground  that  the  master  has  a  lien  on 
the  ship  and  freight  for  this  aj)plication  of  his  own  money 
or  credit  to  the  ship's  necessities.  Upon  what  principle, 
drawn  from  his  contract  merely,  can  it  be  made  his  duty 
to  apply  his  own  money,  or  goods,  or  credit,  to  the  wants 
of  the  owner,  if  this  security  is  denied  to  him  ?  A  very 
accurate  foreign  writer  states  the  substance  of  the  agree- 
ment between  the  master  and  owner  to  be  to  this  eflect : 
that  the  latter  will  faithfully  discharge  every  duty  incum- 
bent on  him,  and  render  a  satisfactory  account  of  all  his 
transactions ;  that  he  shall  receive  a  stipulated  sum  as 
wages ;  and  shall  be  secured  in  all  his  advances,  that  do 
not  exceed  the  value  of  the  vessel,  or  are  authorized  by 
the  owner."  It  is  true,  that  the  maritime  law  throws 
upon  the  master  a  peculiar  agency;  that  it  constantly 
requires  his  best  exertions  for  the  interests  of  the  owner  ; 
that  his  duties  are  not  limited  to  the  mere  navigation  of 
the  vessel  from  j)ort  to  port,  but  he  may  in  some  cases 
be  required  to  act  in  the  same  manner  and  extent,  as  the 
prudent  owner  himself  would  do,  if  present.  In  all  this, 
however,  he  is  dealing  with  and  for  the  benefit  of  the 
property  of  another.  If  he  benefits  and  saves  that  pro- 
perty, by  application  of  his  own  funds  ;  if  he  contributes 
by  his  own  propcn'ty  to  give  value  to  and  to  bring  safely 
home,  a  vessel,  which  otherwise  would  not  return  to  the 
owner's  hands,  there  arises  in  equity  a  clear  lien,  in   his 

'  Ante,  Part  III,  ch.  1,  pp.  176,  182. 

'  Jacobsen's  Sea  Laws,  by  Frick,  B.  2,  cli.  1,  p.  87. 


MASTER'S  LIEN.  259 

favor,  upon  the  vessel,  or  its  earnings,  which  he  has  thus 
secured  ;  and  there  does  not  seem  to  be  any  good  reason 
why  this  Hen  should  not  be  recognised,  at  law,  as  the 
correlative  and  consideration  of  his  asserted  duty  so  to 
apply  his  own  property.^ 

'  See  The  Ship  Packet,  3  Mason's  R.  255,  where  the  master's  duty  was 
put  upon  this  ground. 


PART    FOURTH 


OF   THE   EARNING   AND    PAYMENT   OF 

WAGES. 


CHAPTER    I. 

OF    THE    TIME    WITHIN    WHICH    PAYMENT     OF    WAGES    MAY 
BE    DEMANDED    AND    ENFORCED. 

It  is  the  general  rule  of  the  maritime  law,  that  the  wages 
for  the  whole  voyage  are  not  due  and  payable,  until  the 
voyage  is  terminated  and  the  cargo  is  unlivered.  We 
have  already  seen  that  it  is,  in  general,  the  duty  of  the 
officers  and  crew  to  remain  by  the  ship  until  the  cargo  is 
discharged  ;  ^  and  the  reason  why  the  wages  are  not  pay- 
able until  the  discharge  of  the  cargo  is  complete,  is  both  be- 
cause it  is  part  of  the  contract  that  the  mariner  shall  assist 
in  the  unlading,  and  in  order  that  the  merchant  may  have 
opportunity  to  demand  the  freight,  the  fund  out  of  which 
the  wages  are  ordinarily  to  be  paid,  and  to  see  whether 
any  deductions  are  to  be  made  from  the  wages  on  account 
of  embezzlement  or  other  injury  to  the  cargo.  But  in 
most  countries  there  are  positive  regulations  upon  the 
subject ;  and  in  this  country,  by  Act  of  Congress,  it  is  pro- 
vided that,  as  soon  as  the  voyage  is  ended,  and  the  cargo 
or  ballast  fully  discharged  at  the  last  port  of  delivery, 
every  seaman  or  mariner  shall  be  entitled  to  the  wages 
which  shall  be  then  due  according  to  his  contract,  and  if 
not    j)aid  within   ten  days  after  such  discharge,  the  sea- 

'  Anlr,  Part  H,  ch.  4,  p.  137—140. 


264  WHEN  WAGES  MAY  BE  SUED  FOR. 

man  or  mariner  is  entitled  to  Admiralty  process  against 
the  vessel.^ 

'  Act  U.  S.  20lh  July,  1790,  ch.  29,  sec.  G.  "  That  every  seaman  or  mari- 
ner shall  be  entitloil  to  demand  and  receive,  from  the  master  or  com- 
mander of  the  ship  or  vessel  to  which  they  belong,  one  third  part  of  the 
wages  which  shall  he  due  to  him,  at  every  port  where  such  ship  or  vessel 
shall  unlade  and  deliver  her  cargo  before  the  voyage  be  ended,  unless  the 
contrary  be  expressly  stipulated  in  the  contract :  and  as  soon  as  the  voyage 
is  ended,  and  the  cargo  or  ballast  be  fully  discharged  at  the  last  port  of  de- 
livery, every  seaman  or  mariner  shall  be  entitled  to  the  wages  which  shall 
be  then  due  according  to  his  contract :  and  if  such  wages  shall  not  be  paid 
within  ten  days  after  such  discharge,  or  if  any  dispute  shall  arise  between 
llie  master  and  seamen  or  mariners,  touching  the  said  wages,  it  shall  be 
lawful  for  the  judge  of  the  district  where  the  said  ship  or  vessel  shall  be, 
or  in  case  his  residence  be  more  than  three  miles  from  the  place,  or  of  his 
absence  from  the  place  of  his  residence,  then,  for  any  judge  or  justice  of 
the  peace,  to  summon  the  master  of  such  ship  or  vessel  to  appear  before 
him,  to  show  cause  why  process  should  not  issue  against  such  ship  or  ves- 
sel, her  tackle,  furniture,  and  apparel,  according  to  the  course  of  admiralty 
courts,  to  answer  for  the  said  wages :  and  if  the  master  shall  neglect  to 
appear,  or  appearing,  shall  not  show  that  the  wages  are  paid,  or  otherwise 
satisfied  or  forfeited,  and  if  the  matter  in  dispute  shall  not  be  forthwith  set- 
tled, in  such  case  the  judge  or  justice  shall  certify  to  the  clerk  of  the  court 
of  the  district,  that  there  is  sufiicient  cause  of  complaint  whereon  to  found 
admiralty  process,  and  thereupon  the  clerk  of  such  court  shall  issue  pro- 
cess against  the  said  ship  or  vessel,  and  the  suit  shall  be  proceeded  on  in 
the  said  court,  and  final  judgment  be  given  according  to  the  course  of  ad- 
miralty courts  in  such  cases  used;  and  in  such  suit  all  the  seamen  or  mari- 
ners (having  cause  of  complaint  of  the  like  kind  against  the  same  ship  or 
vessel)  shall  be  joined  as  complainants ;  and  it  shall  be  incumbent  on  the 
•master  or  commander  to  produce  the  contract  and  log-book,  if  required,  to 
ascertain  any  matters  in  dispute;  otherwise,  the  complainants  shall  be  per- 
mitted to  state  the  contents  thereof,  and  the  proof  of  the  contrary  shall  lie 
on  the  master  or  commander;  but  nothing  herein  contained  shall  prevent 
any  seaman  or  mariner  from  having  or  maintaining  any  action  at  common 
law,  for  the  recovery  of  his  wages,  or  from  immediate  process  out  of  any 
court  having  admiralty  jurisdiction,  wherever  any  ship  or  vessel  may  be 
found,  in  case  she  shall  have  left  the  port  of  delivery  where  her  voyage 
ended,  before  payment  of  the  wages,  or  in  case  she  shall  be  about  to  pro- 
ceed to  sea  before  the  end  of  the  ten  days  next  after  the  delivery  of  her 
cargo  or  ballast." 


WHEJSf  WAGES  MAY  BE  SUED  FOR.  265 

The  statute  is  obscare,'  and  the  necessity  of  a  judicial 
construction  was  obvious  from  the  first.  Soon  after  the 
passage  of  the  Act,  Judge  Peters,  of  the  District  Court  of 
Pennsylvania,  gave  it  the  following  construction.  It  ap- 
peared to  him  unwarrantable  to  contend  that  the  ten 
days  should  run  from  the  time  of  the  discharge  of  the 
cargo ;  that  the  discharge  of  the  cargo  or  ballast  was 
coupled  with  the  end  of  the  voyage  in  the  law,  not  as 
part  of  the  contract,  or  to  fix  the  time  from  whence  the 
ten  days  are  to  be  computed,  but  because  it  is  a  neces- 
sary step  to  enable  the  merchant  to  demand  his  freight ; 
and  that  it  is  not  to  be  supposed  that  the  Act  means  to 
fix  two  periods  from  which  one  term  of  ten  days  is  to 
run.  A  reasonable  construction  is  therefore  to  be  given 
to  it,  and  he  allowed  at  the  least  ten  days  from  the  end 
of  the  voyage,  and  at  the  most  fifteen  working  days  to 
unlade.^ 

In  the  District  Court  of  IMassachusetts,  Judge  Davis, 
more  recently,  adopted  a  similar  construction.  He  held 
that  the  ten  days  ordinarily  began  to  run  from  the  period 
when  the  cargo  actually  was  or  might  be  discharged  ; 
and  that  the  voyage  was  then  properly  ended.  But  in 
cases  where  the  crew  were  discharged  upon  arrival  in  port, 
and  were  not  retained  for  the  purpose  of  discharging  the 
cargo,  (as  is  the  common  practice,)  he  thought  the  ten 

'  In  England,  by  Act  of  rarliament,  two  days,  in  coasting  voyages,  from 
the  termination  of  the  agreement,  or  from  the  time  when  the  mariner  re- 
ceives his  discharge,  whichever  shall  first  happen,  and  in  other  voyages,  three 
days  after  the  cargo  sliall  have  been  delivered,  and  ten  days  after  the  mari- 
ner receives  his  discharge,  ichichcvcr  shall  first  liajipin,  arc  the  times  when 
the  wages  are  demandabie.     Act  5  and  G  Wm.  IV.  cii.  19,  sec.  11  and  12. 

*  Kduards  v.  The  Susan,  I  I'etcrs's  Adin.  R.  105.  Thompson  v.  The 
Philadilphia,  Ibid.  210.     Hastings  v.  Th:  JIappy  Return,  2  Ibid.  253, 

34 


2GG  WIIKN  WAGES  MAY   RK  SUED  FOR. 

days  bcf^an  to  run  from  the  time  of  ilio  discharge  of  tlic 
crew;  and  tliat  the  day  of  the  discharge  should  not  be 
iiichidcd  ill  tiic  ten  days.' 

Still  more  recently,  the  subject  was  fidly  examined  by 
Judge  \V'are,  of  the  District  Court  of  Maine.  He  lield 
that  the  ten  days  begin  to  run  from  the  day  wlien  the 
wages  are  completely  earned.  If  by  the  terms  of  the 
contract,  or  the  usage  of  the  place,  the  seamen  are  bound 
to  remain  in  the  vessel,  and  assist  in  unlading  the  cargo, 
then  on  common  principles  they  will  not  be  entitled  to 
their  wages  until  the  cargo  is  discharged.  It  is  the  gene- 
ral rule  of  the  maritime  law  that  the  seamen  are  bound  to 
wait  the  unlivery  of  the  cargo,  in  the  absence  of  any 
usage  or  particular  contract.  But  if  by  the  terms  of  the 
contract  or  the  usage  of  the  port,  the  term  of  service  and 
with  it  the  wages  terminate  when  the  vessel  is  safely 
moored,  and  before  the  unlading  ;  or  if  they  are  dis- 
charged and  other  persons  employed  to  unlade,  then  the 
ten  days  are  to  be  computed  from  the  arrival  of  the  ship, 
or  from  the  discharge  of  the  mariner." 

Ordinarily,  therefore,  the  mariner  is  entitled  to  his  wages 
as  soon  as  he  is  voluntarily  discharged  from  the  vessel;  and 
if  they  are  not  paid  within  ten  days  after  his  discharge, 
he  may  have  process  from  a  Court  of  Admiralty  against 
the  vessel.  But  if  he  be  not  discharged,  and  if  the 
owner  or  master  require  that  he  should  assist  in  un- 
lading, a  period  of  fifteen  days  has  been  adopted  by  the 
courts,  as  a  reasonable  time  for  the  unlading,  and  the 


'  Holmes  V.  BradsJmw,  cited  in  Story's  Notes  to  Abbot  on  Shipping, 
p.  456. 
*  The  Mary,  Ware's  R.  454. 


WHEN  WAGES  MAY  BE  SUED  FOR.  267 

ten  days  are  to  be  computed  from  the  expiration  of  that 


time.^ 


The  statute  does  not  prevent  the  filing  of  a  libel  in  the 
Court  of  Admiralty,  previous  to  the  expiration  of  the  ten 
days,  but  the  issuing  of  process  against  the  vessel ;  so 
that  the  question,  when  raised,  depends  on  the  date  and 
issuing  of  the  warrant  of  arrest,  and  not  of  the  filing  of 
the  libel. ^  There  is  also  an  express  exception,  by  which 
immediate  process  may  be  issued  against  the  vessel, 
wherever  she  may  be  found,  in  case  she  shall  have  left 
the  port  of  delivery  where  the  voyage  ended,  before  pay- 
ment of  the  w^ages,  or  in  case  she  shall  be  about  to  pro- 
ceed to  sea  before  the  end  of  the  ten  days  next  after  the 
delivery  of  her  cargo,  or  ballast. 

By  the  general  maritime  law,  wages  are  earned  at  every 
portof  delivery  during  the  voyage  ;^  but  it  has  been  the  poli- 
cy of  most  nations  to  restrict  the  payment  of  the  full  wages, 
until  the  ship  returns  home,  unless  she  be  lost,  or  detained, 
in  order  to  prevent  desertions.'*  By  our  law,  one  third  only 
of  the  wages  earned  can  be  demanded  by  the  mariner  at 
any  port  of  delivery,  during  the  voyage,  unless  it  has 
been  otherwise  expressly  stipulated  in  the  contract.* 
If  the  ship  be  lost,  or  captured,  whatever  wages  were 

'  Ilohncs  V.  Dradshaw,  per  Davis  J.  cited  in  Story's  Notes  to  Abbot,  p.  456. 
Edwards  v.  Tke  Susan,  1  Peters's  Adm.  R.  1G5.  Thompson  v.  The  Phila- 
delphia, Ibid.  210.     Hastings  v.  The  Happy  Return,  2  Ibid.  253. 

*  The  Many,  Ware's  R.  454. 

'  ThoJulmun,  2  Dods.  Adm.  R.  501;  and  the  port  of  destination  is  for 
this  purpose  a  port  of  delivery,  where  the  ship  goes  in  ballast  for  a  cargo. 
Giles  V.  Thr  Cynthia,  1  Peters'  Adm.  R.  207.  The  Two  Catharines,  2  Ma- 
son's R.  319.     lilanchftrd  v.  Bucknam,  3  Grcenl.  R.  1. 

♦  Lmws  of  Olrron,  art.  19.  I'otliier,  Louagcs  Mar.  n.  211,  212,  213.  Ab- 
bot on  Ship.  p.  453,  part  4,  ch.  2. 

»  Act  v..  S.  20  July,  179(1,  ch.  29,  sec.  0. 


268  MMITATIOiNS  AT  COMMON  LAW. 

earned  up  to  the  last  port  of  delivery  are  recoverable  by 
the  iiuiriiier  on  his  return  home ;'  and  tlie  elaiise  in  the 
act  "  unless  the  contrary  be  ex})ressly  stipulated  in  the 
contract,"  is  intended  to  provide  only  for  a  stipulation  in 
the  contract  as  to  the  time  mid  place  of  payment,  and  not 
to  put  at  hazard,  by  any  stipulation,  the  wages  actually 
earned  at  a  j)ort  of  delivery,  by  making  the  payment  con- 
tingent upon  the  arrival  of  the  ship  at  the  home  port.^ 
The  entire  clause  in  the  act  applies,  also,  to  cases  where 
the  voyage  is  continued.  If  the  ship  is  sold  abroad,  or 
the  seamen  are  discharged  by  their  own  consent,  the 
whole  wages  due  at  the  time  may  be  demanded,  and 
three  months'  wages  in  addition  are  to  be  paid  by  the 
master,  to  the  consul,  two  thirds  to  be  paid  by  him  to 
the  seamen,  and  one  third  retained  to  the  use  of  the 
United  States.^ 

We  have  now  to  inquire,  how  long,  after  wages  be- 
come due,  they  may  be  sued  for,  by  a  mariner.  In  the 
courts  of  common  law,  the  rules  of  the  common  law 
apply  to  the  contracts  of  seamen,  as  to  all  other  con- 
tracts, and  wages  are  not  recoverable,  if  they  have  been 
due  more  than  six  years,  unless  the  party  entitled  to  sue 
were  under  the  disability  provided  for  in  the  statute  of 
limitations,  by  which  the  court  is  governed.  And  in 
England,  the  statute  of  limitations  of  4  Anne,  ch.  16, 
sec.  17,  applies  to  suits  in  the  Admiralty.  But  in  our 
Admiralty  Courts,  there   are   no  other  limitations  than 

»  Giles  V.  The  Cynthia,  1  Peters's  Adra.  R.  209.  Johnson  v.  The  Wal- 
terstorf,  Ibid.  215.     Blanchard  v.  Bucknam,  3  Greenl.  R.  1. 

«  Johnson  v.  The  Walter storf,  1  Peters's  Adm.  R.  215. 

3  Act  U.  S.  28  Feb.  1803,  ch.  62,  sec.  3.— As  to  the  right  of  seamen  to 
sue  in  foreign  courts,  see  post. 


LIMITATIONS  IN  THE  ADMIRALTY.  269 

those  which  Courts  of  Equity  prescribe  to  themselves  in 
the  maintenance  of  suits.  This  question  was  examined 
with  much  care  by  Mr.  Justice  Story,  many  years  ago, 
and  it  was  held  by  him  that  neither  the  statute  of  21 
Jac.  1,  ch.  16,  nor  the  Massachusetts  statute  of  limita- 
tions, which  is  substantially  a  copy  of  the  former,  ap- 
plied to  suits  in  the  Admiralty,  and  that  the  act  of  4 
Anne  included  only  the  High  Court  of  Admiralty  in 
England,  and  was  never  adopted  in  any  of  the  colo- 
nies ;  though  if  it  had  been,  it  could  not  now  govern  the 
Admiralty  Courts  of  the  United  States,  which  possess 
general  admiralty  and  maritime  jurisdiction,  under  the 
constitution.  The  act  of  the  United  States  regulating 
suits  for  mariners'  wages  contains  no  limitations  as  to  the 
time  within  which  such  suits  shall  be  brought.  In  the 
exercise  of  their  jurisdiction,  therefore,  our  Courts  of  Ad- 
miralty are  governed  by  the  general  principles  of  such 
tribunals.'  Those  principles  are  to  refuse  aid  in  favor  of 
stale  and  dormant  claims,  where  the  party  has  not  been 
vigilant  in  asserting  them ;  to  follow  the  analogy  of  the 
rules  prescribed  to  courts  of  common  law,  unless  under 
special  circumstances,  constituting  a  just  exception,  which 
free  the  case  from  the  imputation  of  staleness." 

It  would  indeed  be  unfortunate,  if  the  Admiralty  ju- 
risdiction were  ever  to  be  trammeled  with  any  limita- 
tions to  the  claims  of  seamen,  other  than  those  which 
Courts  of  E(juity  jHcscribe  to  themselves.  Wages  are 
de})endent  on  the  earning  of  freight,  and  the  payment  is 

1  lirown  V.  Jonrx^  2  Gallison's  R.  481.  Willard  v.  Dorr,  3  Mason's  R. 
91,  101. 

'  Ibid.  The  Sarah  Ann,  2  Sumner's  R.  200.  Pitman  v.  Hooper,  3  Ibid. 
286.     Sec  also  The  Mentor,  1  Rob.  A<1mi.  U.  ISO.     The  Rebecca,  5  Ibid.  10:i. 


270  LIMITATIONS  IN  TIIH  ADMIRALTY. 

sometimes  susjXMKlcd,  to  nwait  nn  indemnity  from  a 
foreign  government  ;  and  at  oilier  times,  in  eases  of  iii- 
solveney,  the  only  relianee  for  tiie  mariner  is  u])on  the 
shi])  M  hieh  may  have  passed  into  otiier  hands,  and  may 
remain  beyond  liis  reaeh,  long  after  a  partieular  term  of 
time  has  elosed  upon  his  just  demand. 


CHAPTER  II. 

OF  WAGES  AS  AFFECTED  BY  VARIOUS  INTERRUPTIONS 

OF  THE  VOYAGE. 

The  voyage  being  ended,  the  title  of  the  mariner  to 
the  fruits  of  his  toil  becomes  complete.  But  there  is  a 
maxim,  which  has  had  great  currency  in  English  and 
American  jurisprudence,  that  "  Freight  is  the  mother  of 
wages ;"  a  formula  that  should  be  carefully  scrutinized 
in  its  application.  It  is  true  in  the  inclusive,  though  not 
in  the  exclusive  sense  ;  for  although  it  is  true,  that  where 
freight  is  made  wages  are  due,  yet  it  does  not  always 
follow  that  if  there  be  actually  no  freight,  there  can  be 
no  wages. ^  In  the  application  of  this  rule,  a  distinction 
is  to  be  made  between  those  accidents  by  which  the 
voyage  is  interrupted  and  the  freight  lost,  without  the 
fault  of  the  owner,  or  master,  and  other  causes  arising 


'  Thus  il  is  said,  that  if  a  vessel  be  sent  out  on  a  seeking  voyage,  and 
obtains  nolhinj?,  the  mariner  is  yet  entitled  to  his  wages,  if  she  arrives  home 
in  safely,  for  by  his  contract  he  has  a  lien  on  the  vessel.  The  Lady  Dur- 
ham, 3  Hagg.  Adin.  R.  202.  So  too,  wiierc  the  loss  of  freight  is  occasioned 
by  a  seizure  for  illegal  trading,  of  which  the  crew  are  innocent,  the  wages 
are  not  only  not  forfeited  with  the  vessel,  but  the  mariners  are  not  barred 
of  their  action  against  the  owners.  'Vlic  MalUt,  2  lining.  Adiii.  R.  15S. 
These  and  the  like  cases  show  the  necessity  of  dealing  cautiously  with  such 
a  tnaxim  as  that  quoted  in  the  text. 


272  now  FAR  WAGES  DEPEND  ON  FREIGHT. 

from  the  acts  of  the  owner  or  mnstcr.'  This  distinction 
tlioreroro  establisiies  scvtM'al  clear  exceptions  from  the 
rule.  If  the  voyage  or  freight  bo  lost  by  the  negligence, 
fraud,  or  misconduct  of  tin;  owner  or  master,  or  volunta- 
rily abandon(>d  by  them  ;  if  the  owner  have  contracted 
for  freight  upon  terms  or  contingencies  differing  from  the 
general  rules  of  the  maritime  law  ;  or  if  he  have  char- 
tered his  ship  to  take  a  freight  at  a  foreign  port,  and 
none  is  to  be  earned  on  the  outward  voyage,  in  all  these 
cases,  the  mariner  is  entitled  to  wages,  notwithstanding 
no  freight  has  accrued.-  The  doctrine  of  the  connection 
between  freight  and  wages  has  lately  been  thoroughly 
reviewed  by  Mr.  Justice  Story  in  an  elaborate  judgment, 
in  which  he  states  a  far  more  accurate  general  formula 
than  the  usual  one  ;  that  where  freight  is,  or  might  be 
earned,  wages  are  due  for  the  full  period  of  employment 
in  the  ship's  service,  whether  the  freight  is  actually  re- 
ceived by  the  owner  or  not ;  and  that  no  private  con- 
tract between  the  owner  and  the  shipper,  with  regard  to 
freight,  can  affect  the  right  to  wages.^ 

'   The  Malta,  2  Hngg.  Adm.  R.  162,     L'Ord.  de  la  Marine,  liv,  3,  tit.  4, 
art.  3,  4.     Valin,  Comm.  tome  i,  p.  686.     Pothier,  Louages  Mar.  n.  199, 

200,  201.    Abbot  on  Shipping,  part  4,  ch.  2,  sec.  4,  5,  6. 

*   The  Saratoga,  2  Gallis.  R.  175.     Wolf  v.  The  OJcr,  2  Peters's  Adm.R. 

201.  Hoyt  V.  Wildfire,  3  Johns.  R.  518.  Emerson  v.  Howland,  1  Mason's  R. 
45.  The  Malta,  2  Hagg.  Adm.  R.  162.  Giles  v.  The  Cynthia,  1  Peters's  Adra. 
R.  207.  The  Two  Catharines,  2  Mason's  R.  319.  Blanchard  v.  Bucknam, 
3  Greenl.  R.  1.  The  Juliana,  2  Dods.  Adm.  R.  501.  Van  Bevren  v.  Wilson, 
9  Cowen's  R.  158.  So  too  in  cases  of  shipwreck,  where  parts  of  the  ves- 
sel are  saved  by  the  crew,  they  have  a  lien  for  their  wages  on  what  is 
saved.  But  this  is  sometimes  deemed  to  be  a  claim  in  the  nature  of 
salvage. 

^  Pitman  v.  Hooper,  3  Sumner's  R.  50,  286.     So  too,  The  Consolato, 
after  various  provisions  directing  the  wages  to  be  paid  out  of  freight, 


WAGES  LOST  WITH  FREIGHT.  273  ' 

These  principles  are  now  to  be  applied  to  the  differ- 
ent cases  of  a  loss  of  the  vessel  at  different  periods  of 
the  round  vovage  ;  as  firsts  on  the  outward  voyage  ; 
secondly^  on  the  homeward  voyage ;  third/ij,  where  the 
loss  takes  place  between  intermediate  ports. 

1.  Where  the  vessel  is  lost  on  the  outward  voyage. 
The  contract  of  the  mariner  is,  as  we  have  seen,  an  en- 
tire contract  for  the  voyage,  and,  unlike  most  contracts 
for  the  hire  of  services,  the  wages  are  made  dependent 
on  the  successful  issue  of  the  enterprise,  for  reasons  of 
policy,  in  order  that  the  mariner's  reward  may  be  bound 
up  in  the  safety  of  the  vessel  and  cargo,  so  that  motive  to 
exertion  may  be  drawn  in  part  from  his  own  interest.^ 
The  owner  of  the  vessel  is  therefore  absolved  from  the 
payment  of  wages  by  the  total  loss  of  the  ship,  however 
long  the  mariners  may  have  been  in  his  employment  pre- 
vious to  such  loss  ;  and  this  rule  of  the  entirety  of  the 
contract  is  only  so  far  modified  by  the  equitable  inter- 
vention of  another  principle,  as  to  give  the  mariner  wages 
when  and  as  long  as  the  vessel  has  or  might  have  earn- 
ed freight.^  If  therefore  the  vessel  and  cargo  are  lost 
on  the  outward  voyage,  before  any  freight  is  earned,  and 
no  part  of  either  are  saved  by  the  crew,  the  wages  of  the 
seamen   are  also  lost  and  the  original   contract  therefor 


whether  a  large  or  small  amount  has  been  received,  declares,  "  this  chapter 
has  been  made,  in  order  that  every  master  should  attend  carefully  how  he 
freights  his  ship,  to  whom  and  with  what  merchandise  ;  because  whether 
he  receives  the  freight,  or  does  not  receive  it,  the  mariners  ought  to  bo  paid 
their  wages."     Chap.  94,  [139].     Pardessus,  tome  ii,  p.  131. 

'  Pothier,  linages  Mar.  n.  184. 

•  Ante,  p.  272. 

35 


274  WAGES  CANNOT  BK  INSURED. 

is  anmiUod.'     But  the  advanco  wages  arc  not  in  such 
cases  to  be  returned.* 

Tlie  same  rule  of  policy  which  makes  the  wages 
dependent  on  the  safety  of  the  vessel  and  cargo  and 
the  earning  of  freight,  or  the  usnal  o])])ortunity  to  earn 
it,  necessarily  excludes  the  mariner  from  the  benefit  of 
insurance,  obtained  by  the  owner,  or  on  his  own  account, 
directly  or  indirectly.  If  a  loss  takes  place,  a  recovery 
therefor  by  the  owner  from  underwriters  does  not  give 
the  seaman  a  right  to  recover  wages.^  So  too,  the  mari- 
ner cannot  procure  his  wages  to  be  insured,  as  that  would 
entirely  abrogate  the  rule  and  policy  of  the  law.* 

'  VOrd.  dela  Marine,  liv.  3,  tit.  4,  art.  8.  Valin,  Comm.  tome  i,  p.  701. 
Abbot  on  Shipping,  part  4,  ch.  3,  sec.  1.  3  Kent's  Comm.  187.  The  Nep- 
tune, 1  Hagg.  Adra.  R.  239.     Adams  v.  The  Sophia,  Gilpin's  R.  77. 

*  Valin,  Comm.  tome  i,  p.  702.  Pothier,  Louages  Mar.  n.  184,  185. 
The  Neptune,  1  Hagg.  Adra.  R.  239.  In  the  case  of  The  Mentor,  4  Mason's 
R.  102, 103,  the  Court  defined  advance  wages  to  be,  in  effect,  a  sum  that  is 
given  in  part  consideration  of  the  contract  to  go  on  the  voyage,  and  is  not 
affected  by  any  subsequent  occurrences,  the  owner  consenting  to  lose  it,  if 
the  wages  subsequently  earned  do  not  indemnify  him. 

'  Mc Quirk  V.  The  Penelope,  2  Pcters's  Adm.R.276.  Percival  v.  Hickeij, 
18  Johns.  R.  257.  Icard  v.  Gould,  11  Ibid.  279.  The  Lady  Durham, 
3  Hagg.  Adm.  R.  196. 

*  The  Neptune,  1  Hagg.  Adm.  R.  239.  Underwriters  become  liable  for 
wages  after  an  abandonment,  not  as  insurers  towards  the  seamen,  but  on  a 
personal  liability  as  owners,  which  relation  they  sustain  after  the  aban- 
donment is  accepted  by  them.  In  a  late  case  in  the  Circuit  Court  of  the 
United  States  for  Massachusetts,  a  quarc  is  thrown  out  by  the  court, 
whether  an  insurance  by  seamen  of  their  shares  on  a  fishing  voyage, 
where  the  shares  would  be  in  the  nature  of  wages,  though  given  in  lieu 
thereof,  would  be  valid.  JIancox  v.  Fishing  Ins.  Co.  (3  Sumner's  R.  132, 
141.)  I  do  not  see  why  an  insurance  bij  the  seaman  hiynself,  of  his  share,  or 
lay,  would  not  be  within  the  prohibition  of  the  policy  which  is  understood 
to  be  the  foundation  of  the  rule  in  regard  to  monthly  wages.  Rut  these 
shares  are  assignable,  before  the  vessel  sails.  The  assignee  has  an  insur- 
able interest ;  he  may  procure  insurance  that  shall  be  unknown  to  the  sea- 


WAGES  DUE  AS  FAR  AS  FREIGHT  EARNED.  273 

2.    JVIiere  the  vessel  is  lost  on  the  homeward  voyage. 
The  mariner's  contract  for  wages  is  in  most  respects  an 
entire  contract  for  the   round  voyage.     But  if  a  loss  of 
the  ship  takes  place  after  she  has  been  at  one  of  the  out- 
ward ports  of  destination,  the  rule  that  the  earning  of 
freight  for  the  owner  is  also  the  earning  of  wages  for  the 
mariner,  gives  him  an  election  to  divide  this  entire  voyage 
into  two  periods,  which  the  maritime  law  treats  distinctly, 
as  the  outward  and  the  homeward  voyages,  in  order  to 
give  effect  to  the  equitable  rule  which  it  has  established 
in  his  favor,     ^^"llcn,  therefore,  the  vessel   is  totally  lost 
on  the   homeward  Aoyage,  the  inquiry  is  to  be   made, 
whether  freight  was  or  might  have  been  earned  on  the 
outward  voyage.     The  requisitions  of  the  law,  in  favor 
of  the  mariner,  will  be  satisfied  if  the  freight  was,  or 
upon   tlie   princii)les  of  the   maritime   law,   might  have 
been  earned,  on  the  outward  voyage.     Thus  wages  are 
due  at  the  port  of  delivery  of  the  outward  cargo  ;^  and  the 
port  of  destination  is  in  general  to  be  deemed  a  port  of  de- 
livery for  the  purpose  of  wages,  though  the  vessel   may 
have  gone  there  in  ballast.^     So  too,  if  there  is  a  special 


man,  and  in  that  case  one  reason  of  the  public  policy  would  be  removed, 
•which  is  commonly  assigned  as  an  ingredient,  that  the  exertions  of  the 
mariner  arc  lessened  by  the  knowledge  that  his  wages  are  insured,  Mr. 
Chancellor  Kent  says  thai  the  goods  which  seamen  purchase  abroad  with 
their  wages,  do  not  fall  within  the  prohibition,  and  that  wages  already 
earned  and  due,  do  not.     3  Comm.  p.  2G9,  edit.  1840. 

•  Anon.  1  Lord  Raym.  G39.  The  Juliana,  2  Dods.  Adm.  R.  501.  The 
Neptune,  )  Hngg.  Adtn.  R.  232. 

'  Abbot  on  Ship,  part  4,  ch.  2,  sec.  4.  3  Kent's  Comm.  190.  Giles  r. 
The  Cynthia,  1  Pelers's  Adm.  R.  207.  The  Two  Catharines,  2  Mason's  R. 
319.  Dl'inchard  v.  Ducknam,  3  Green.  R.  1.  Thompson  v.  Faussat,  1 
Pelers's  Circ  C.  R.  182.     Pitman  v.  Hooper,  3  Sumner's  R.  290- 


276  WAGES  DUE  AS  FAR  AS  FUKICIIT  EARNFJ). 

contract  between  the  owner  and  the  (Veiiilitcr,  varying 
the  rii;h(  to  iVeiiiht  from  the  c;eneral  law,  iVeii^iit  will  still 
be  (](HMn(Hl  to  have  been  earned  for  the  purposes  of 
wafi'es.* 

If,  tlierefore,  the  vessel  is  lost  on  the  homeward  voya|[^e, 
and  freight  has  been,  or  might  have  been,  by  the  general 
principles  of  law,  earned  to  an  outward  port,  the  wages 
for  the  outward  vovage  to  that  ])ort  are  deemed  to  have 
been  earned  ;  and  the  rule  is  now  firmly  established  in 
this  country,  that  the  outward  voyage  is  to  be  considered 
as  including  generally,  for  the  purpose  of  wages,  one 
half  of  the  time  spent  at  such  out^^  ard  port.'     Nor  is 

'  3  Kent's  Coram.  190,  191.  Pilman  v.  Hooper,  3  Sumner's  R.  50,  286. 
Case  in  3  Hagg. 

"  Pitman  v.  Hooper,  3  Sumner's  E.  286.  Hooper  v.  Perley,  11  Mass.  R. 
545.  Locke  v.  Swan,  13  Ibid.  76.  Swift  v.  Clarke,  15  Ibid.  173.  Moore 
T.  Jones,  15  Ibid.  424.  Galloivay  v.  Morris,  3  Yeates's  R.  445.  Giles  v. 
The  Cynthia,  1  Peters's  Adra.  R.  204.  The  Elizabeth,  Peters's  Circ.  C.  R. 
130.  The  Walterstorff,  1  Peters's  Adm.  R.  215.  Cranmer  v.  Gernon,  2 
Ibid.  391.  Thompson  v.  Faussatt,  1  Peters's  Circ.  C.  R,  182.  Jones  v. 
Smith,  4  Hall's  Am.  Law  Jour.  276.  The  only  case  in  which  this  rule 
has  been  questioned,  in  this  country,  is  that  of  Bronde  v.  Haven,  (Gilpin's 
R.  592) ;  and  this  must  be  considered  as  outweighed  by  the  numerous  deci- 
sions in  which  it  has  been  supported.  See  an  examination  of  the  authorities 
in  Pitman  v.  Hooper,  supra.  Upon  the  theory  of  the  rule,  the  court  in 
this  last  case  said :  "  It  is  difTicult  to  lay  down  any  universal  rule,  ap- 
plicable to  all  cases,  as  to  when  the  outward  voyage  ends,  and  the  home- 
ward voyage  begins,  in  respect  to  seamen's  wages.  In  a  just  and  legal 
sense,  the  outward  voyage  may  well  be  deemed  generally  to  continue  as 
to  seamen's  wages,  as  long  as  the  seamen  are  engaged  in  purposes  con- 
nected with  the  outward  voyage,  whether  the  cargo  is  discharged  or  not; 
and  the  homeward  voyage  to  begin,  when  any  acts  are  done  or  preparations 
made,  having  reference  exclusively  to  the  homeward  voyage.  And  if  there 
be  any  intermediate  time  which  is  not  properly  referrible  to  either,  that 
may  well  be  treated  like  an  intermediate  voyage  in  ballast,  to  be  for  the 
benefit  and  purposes  of  the  owner,  and  for  which  he  ought,  therefore,  to 
pay  the  seamen  for  their  services.    In  ordinary  voyages,  it  is  not  very 


DIVISIBILITY  OF  THE  ROUND  VOYAGE.  277 

there  any  abatement  to  be  made  from  the  wajjes,  in 
case  of  the  freight  being  partially  lost  or  diminished  by 
maritime  accidents  or  perils.  If  freight  is  earned, 
■whether  it  be  large  or  small,  the  whole  wages,  which 
are  deemed  to  have  been  earned,  are  to  be  paid  without 
deduction.^ 

The  wages  for  the  homeward  voyage,  calculated  from 
the  expiration  of  half  the  time  that  the  ship  lay  at  the 
outward  port,  are  lost  by  a  total  loss  of  the  ship  and 
freight  on  the  homeward  voyage,^  and  the  right  to  wages, 
thus  lost,  is,  (as  we  shall  see  in  the  course  of  this  chapter,) 
restored  only  by  a  restitution  of  freight  to  the  owner, 
under  an  indemnity  in  cases  of  capture,  or  by  a  salvage 


easy  to  find  any  such  intermediate  time,  or  to  measure  it  with  exactness  ; 
and  in  many  cases  acts  are  done,  and  proceedings  had  simultaneously  with 
reference  both  to  the  outward  and  the  homeward  voyage;  so  that  it  is  im- 
practicable to  divide  the  time  with  perfect  accuracy.  It  was  with  a  view- 
to  this  practical  difficulty,  that  the  rule  has  been  established  that  one  half 
of  the  time  during  which  the  vessel  is  lying  in  the  port,  shall  be  deemed  a 
part  of  the  outward  voyage,  and  the  other  half  part  of  the  homeward 
voynge.  For  the  sake  of  uniformity  and  certainty,  half  the  time  passed  ia 
port  is  attributed  to  each  voyage,  and  it  is  an  apportionment  commended 
by  the  double  motive  of  suppressing  litigation  upon  sligiit  distinctions,  and 
of  accomplibhing  the  ends  of  maritime  policy,  by  which  the  right  to 
wages  is  made  in  a  good  degree  dependent  on  the  safety  and  success  of  the 
voyage."     Ibid. 

'  Pitman  v.  Hooper,  3  Sumner's  R.  50.  In  addition  to  the  authorities 
cited  in  the  learned  opinion,  in  this  case,  a  passage  in  the  Coni^ola/o  may 
be  quoted,  which  seems  to  have  escaped  the  attention  of  the  court,  but 
which  is  precisely  in  point.  "  If,  in  any  event,  the  merchants  have  been 
faithless,  or  if  the  merchandise,  not  being  worth  the  freight  due  upon  it,  is 
abandoned  for  the  freight,  whether  such  merchandise  is  worth  the  freight 
or  not,  liie  seamen  ouglil  to  have  their  wages  even  though  it  should  be 
necessary  to  sell  tlic  ship  for  a  sum  less  than  would  be  sufficient  to  pay 
them."     Consolalo  drl  Marc,  cli.  94,  [139].     Pard.  tome  ii,  p.  130. 

•  Pitman  v.  Hooper,  3  yumner's  R.  286. 


278  WAGES  m  CASES  OF  CAPTURE. 

of  some  part  of  tlio  sliip,  or  carf^o,  by  tlic  crew,  in  cases 
of  wreck  ;  unless  the  loss  took  place  hy  the  fraud  or  fault 
of  tiie  master  or  owner. ^ 

3.  fllieie  the  vessel  is  lost  beiiveen  intermediate  ports. 
The  same  general  rules  apply  to  this  case  as  to  those 
where  the  voyage  consists  of  two  distinct  periods  only. 
The  wages  are  to  be  calculated  up  to  the  last  port  of 
the  delivery  or  receipt  of  cargo,  and  for  half  the  time 
that  the  ship  lies  there.^  The  most  valua])le  case  illus- 
trating this  doctrine  is  an  elaborate  judgment  of  Lord 
Stowell's,  in  which  he  held  that  in  a  divided  voyage,  in 
which  cargoes  successively  taken  in  and  delivered  at  dif- 
ferent ports  earn  freight  for  the  owners  at  each  port  of 
delivery,  wages  are  earned  by  the  mariners  by  the  gen- 
eral maritime  law  ;  and  he  declared  emphatically  that 
no  contract  in  the  shipping  articles  by  which  the  mariners 
are  not  to  be  entitled  to  their  wages  unless  the  ship  re- 
turns to  the  last  port  of  discharge,  would  be  upheld  by 
the  Court  of  Admiralty.^ 

The  effect  of  various  interruptions  of  the  voyage  is 
now  to  be  considered. 

1.  Capture  by  a  belligerent.  It  was  formerly  supposed 
that  the  capture  of  a  neutral  ship  completely  dissolved 
the  mariner's  contract  and  defeated  all  , rights  and  in- 
terests under  it.^     But  it  is  now  well  settled,  that  the 

»   The  Malta,  2  Hagg.  Adm.  R.  158. 

*  Johnson  v.  The  Walterstorff,  1  Peters's  Adm.  R.  215.  Gallowaxj  v. 
Morris,  3  Yeates's  R.  445.  Thompson  v.  Faussalt,  1  Peters's  Circ.  C.  R. 
182.  Lindsey  v.  The  South  Carolina,  Bee's  R.  173.  And  the  cases  cited 
supra. 

^   The  Juliana,  2  Dods.  Adm.  R.  504. 

*  So  held  by  the  Supreme  Court  of  Massachusetts,  in  I^cmon  v.  Walker, 
9  Mass.  R.  404,  and  in  Alfridson  v.  Ladd,  12  Ibid.  173 ;  but  questioned  and 


WAGES  IN   CASES  OF  CAPTURE.  279 

capture  of  a  neutral  ship  does  not  of  itself  operate  as  a 
dissolution  of  the  contract  for  mariner's  wages,  but  at 
most  only  as  a  suspension  of  it.  It  is  ordinarily  the  right 
and  duty  of  the  mariners  to  remain  by  the  ship,  while 
there  is  any  hope  of  recovery  of  the  property,  which  is 
generally  to  be  considered  as  at  an  end  when  a  condem- 
nation and  sale  of  the  ship  takes  place.  If  the  ship  is 
restored  and  performs  her  voyage,  the  contract  is  revived 
and  the  mariner  becomes  entitled  to  his  wages ;  that  is, 
to  his  full  wages  for  the  voyage,  if  he  has  remained  on 
board  and  done  his  duty,  or  if,  being  taken  out,  he  has 
been  unable,  without  any  fiiult  of  his  own  to  rejoin  the 
ship.^  If  the  ship  is  condemned  by  a  sentence  of  con- 
demnation, then  the  contract  is  dissolved,  and  the  sea- 
men  discharged    from  any  further  duty  on  board  ;  and 

much  shaken  in  Spafford  v.  Dodge,  14  Ibid.  72.  See  also  Brooks  v.  Dorr, 
2  Ibid.  39.  Sir  William  Scott  held  the  same  in  The  Friends,  4  Rob.  Adm. 
R.  143. 

'  Where  a  mariner  is  taken  out  of  the  captured  ship,  and  is  unable  with- 
out any  fault  of  his  own  to  rejoin  her,  he  is  entitled  to  his  full  wages  for 
the  voyage,  if  the  vessel  is  afterwards  released,  recaptured  or  ransomed,  he 
paying  his  proportion  of  salvage  and  ransom  money  in  the  two  last  cases, 
and  deducting  also  any  wages  he  may  have  earned  in  the  intermediate 
period,  lloidand  v.  The  Lavinia,  1  Pelers's  Adm.  R.  123.  Hart  v.  The 
Little  John,  1  Ibid.  132.  Girard  v.  Ware,  1  Ibid.  142.  Singstrom  v.  The 
Hazard,  2  Ibid.  3S4.  Brooks  v.  Dorr,  2  Mass.  R.  39.  Welmore  v.  Hen- 
shaw,  12  Johns.  R.  324.  Spajford  v.  Dodge,  14  Mass.  R.  G6.  The  Sara- 
toga, 2  Gallis.  R.  164.  Beale  v.  Thompson,  4  East's  R.  54G.  Sir  William 
Scott  held  otherwise  in  the  case  of  The  Friends,  (4  Rob.  Adm.  R.  143,)  as 
lo  a  mariner  taken  out  of  the  vessel,  which  had  been  captured  and  recap- 
tured. But  our  law  is  clearly  in  favor  of  the  mariner,  and  the  principle  is 
ancient.  The  Consulate  declares  that  if  a  mariner  is  lakcn  from  ihe  vessel 
by  pirates,  or  a  hostile  force,  he  ought  to  have  his  wages  the  same  as  if  he 
had  performed  the  voyage.  Consolato  del  Marr,  (Imp.  137,  [182].  Pardcs- 
sus,  tome  ii,  p.  152.  It  seems  that  it  is  otherwise  where  the  seauian  is  im- 
pressed, and  I  he  vessel  permitted  to  proceed.  Watson  v.  The  Rose,  1 
Petera's  Adm.  R.  132. 


280  WA(JES   IN  CASES  OF   CAPTURE  — RESTITUTION. 

they  lose  their  wanes,  unless  there  is  a  subsequent  resti- 
tution of  tiie  property,  or  of  its  e(|uivalent  value,  upon  an 
appeal,  or  by  treaty,  with  an  allowance  of  freight,  in 
which  event  their  claim  for  waives  revives.  In  the 
case  of  a  restitution  in  value,  the  proceeds  represent  the 
ship  and  frcnght,  and  are  a  substitute  therefor.  If  freight 
is  decreed  or  allowed  for  the  whole  voyage,  then  the 
mariners  are  entitled  to  the  full  wages  for  the  whole 
voyage  ;  for  the  decree  for  freight,  in  such  a  case,  in- 
cludes an  allowance  of  the  full  wages,  and  consequently 
creates  a  trust  or  lien  to  that  extent  thereon,  for  the  ben- 
efit of  the  mariners.  If  the  freight  decreed  or  allowed 
is  for  a  part  of  the  voyage  only,  the  seamen  are  ordina- 
rily entitled  only  to  wages  up  to  the  time  for  which  the 
freight  is  given,  unless  under  special  circumstances,  as 
where  they  have  remained  by  the  ship  at  the  special 
request  of  the  master,  to  preserve  and  protect  the  prop- 
erty for  the  benefit  of  all  concerned.* 

Two  valuable  cases,  arising  under  the  provisions  of 
indemnity  made  by  treaty,  which  have  been  already  cited, 
have  been  adjudicated  recently  in  the  Circuit  Court  of 
the  United  States  for  the  First  Circuit.  A,  shipped  as 
mariner  on  board  a  brig,  on  a  voyage  from  Beverly,  in 
Massachusetts,  to  Naples,  and  back  again,  at  the  rate  of 
wages  of  eighteen  dollars  per  month.     The  brig  arrived 


'  This  statement  of  the  doctrine  is  taken  from  the  opinion  of  the  court 
in  Brown  v.  Lull,  2  Sumner's  R.  447.  See  also  The  Saratoga,  2  Gallis. 
R.  164.  Emerson  v.  Howland,  1  Mason's  R.  45.  Willard  v.  Dorr,  3  Ibid. 
161.  Shuppard  v.  Taylor,  5  Pcters's  S.  C.  R.  675.  Lindsay  \.  The  South 
Carolina,  Bee's  R.  173.  Pitman  v.  Hooper,  3  Sumner's  R.  50,  286.  Beah 
V.  Thompson,  4  East's  R.  546.  3  Kent's  Comrn.  191,  192,  193.  Abbot  on 
Ship,  part  4,  ch.  3,  sec.  2,  and  notes. 


WAGES  IN  CASES  OF  CAPTURE  .\ND  IJNDEMNITY.  281 

at  Naples,  and  was  there  seized,  confiscated  and  sold. 
A  continued  on  board  until  he  was  discharged  by  the 
master,  ^ith  his  own  consent,  when  he  returned  home. 
By  a  convention  with  the  King  of  the  Two  Sicilies,  a 
provision  was  made  for  the  indemnity  of  this  and  other 
American  claims  ;  and  three  instalments  were  received, 
amounting  in  all  to  more  than  the  claim  of  A  for  wages; 
a  proportion  of  the  indemnity  went  to  the  underwriters, 
who,  at  the  time  of  the  loss,  had  insured  the  vessel. 
The  suit  was  by  libel  in  the  Admiralty,  in  personam^ 
a2:ainst  the  executors  of  the  owner  of  the  brig.  The 
court  held  that  the  libellant  should  recover  full  wages 
from  the  time  of  his  shipment,  up  to  the  time  of  his 
arrival  in  the  United  States,  as  indemnity  had  been 
made  by  treaty,  and  received  by  the  owner,  sufficient  to 
pay  the  claim  for  wages ;  and  that  the  owner's  having 
paid  over  to  the  underwriters  a  part  of  the  fund  did  not 
release  him  pro  ianto,  or  at  all,  from  his  original  liabil- 
ity under  his  contract,  A^  liich  had  revived  by  the  receipt 
of  the  indemnity.* 

In  the  other  case,  an  American  ship,  having  delivered 
her  outward  cargo  at  St.  Petersburg,  was  captured  on 
the  homeward  voyage  by  the  Danes,  carried  into  Den- 
mark, and  condemned.  Comj)ensalion  ANas  afterwards 
made  by  treaty,  for  the  sliip  and  cargo,  which  belonged 
to  the  same  owner.  The  libel  was  in  iiersonam  against 
the  owner's  administrator.  The  owner  had  not  received 
a  full  iiKJcuiiiilN,  but  taking  his  share;  in  ])roportion  with 
the  other  claimants  to  the  fund  paid  under  tiie  treaty,  he 

'  BruivH  V.  Lu//,  2  Sumner's  R.  W.i.     Ste  also  llnwhs  v.  Dorr,  2  Mass. 
R.  39. 

36 


232        WAGKS  IN  CASE  OF  INTKRDICTION  OF  COMMERCE. 

received  about  one  tliird  of  his  loss.  Tlie  commissioners 
mulcr  the  treaty  madt'  no  express  allowance  on  account 
of  lVeii;lit.  The  court  liehl  that  tlie  s(^amen  were  en- 
titled to  recover  lull  wages;  that  the  indenniity  made 
must  bo  presumed  to  have  included  freight ;  and  that 
whether  this  was  irreat  or  small,  whether  received  in 
whole,  or  only  in  })art,  by  the  owner,  the  right  of  the 
seamen  to  wages  accrued  to  the  full  extent  of  the  freight 
earned.' 

In  cases  of  rescue,  recapture  and  ransom,  the  wages  of 
the  mariners  are  subject  to  the  general  average ;  but 
they  are  not  liable  to  contribution  in  any  other  cases  of 
general  average.^ 

The  ship's  crew  may  entitle  themselves  to  salvage  by 
recapturing  the  vessel  from  a  seizure  made  by  an  usurped 
authority  of  a  foreign  government,  or  from  a  regular 
capture.^ 

2.  Interdiction  of  commerce.  If  a  vessel  be  on  a 
voyage  to  a  foreign  country,  and  a  declaration  of  war 
takes  place  between  such  foreign  country  and  that  of  its 
owner,  the  farther  prosecution  of  the  voyage  becomes 
illegal.'*  The  effect  of  this  upon  the  mariner's  contract 
was  considered  in  the  case  of  TJie  Saratoga.  It  was  held 
that  the  original  contract  was  com})letely  dissolved,  and 
that  the  vessel  earning  no  freight,  the  mariners  were  con- 
sequently entitled  to  no  w'ages.     But  it  appearing  that  the 

'  Pitman  v.  Hooper,  3  Sumner's  R.  50,  286, 

*  VOrd.  de  la  Marine,  liv.  3,  tit.  4,  art.  20.  Jacobsen's  Sea  Laws,  book 
2,'ch.  2,  p.  155.  Valin,  Comm.  p.  752.  Pitman  v.  Hooper,  3  Sumner's  R. 
50,  59  —  61.  The  Frimds,  4  Rob.  Adm.  R.  143.  Abbot  on  Ship,  part  4, 
ch,  3,  sec.  2,  p.  458. 

=>  Williams  V.  Suffolk  Ins.  Co. ,3  Sumner's  R.  270.  1  Peters's  Adm. R.  306. 

*  See  article  Trade  ivilh  the  Enemy,  Adm.  Digest,  p.  495. 


WAGES  IN  CASE  OF  EMBARGO.  283 

crew  had  been  subsequently  retained  by  the  master  to  refit 
and  preserve  the  ship  in  the  port  where  she  lay,  they 
were  held  to  be  entitled  to  a  reasonable  compensation  in 
the  nature  of  wages,  upon  the  ground  of  a  new  contract.^ 
The  case  of  an  embargo,  or  detention  of  the  vessel  by 
order  of  the  sovereign,  is  different  from  a  declaration  of 
war.  An  embargo^  is  a  temporary  restraint,  meaning  in 
commerce  a  stop  put  to  trade  for  the  time.  It  may  be 
applied  to  foreign  or  domestic  vessels  ;  to  the  ships  of 
one  nation  in  the  ports  of  another,  or  to  its  own  ships  in 
its  own  ports.  In  either  case,  it  is  not  deemed  a  disso- 
lution of  the  voyage,  or  of  the  contracts  concerning  it.^ 
If  the  vessel  is  released  and  performs  her  voyage,  or  if  a 
new  voyage  is  substituted,  the  seamen  are  entitled  to 
wages  during  the  detention.* 

'  The  Saratoga,  2  Gallison's  R.  164.  If  one  or  more  freights  to  inter- 
mediate ports  had  been  earned  by  the  vessel,  before  the  interdiction  of  com- 
merce took  place,  orif  by  a  voluntary  acceptance  of  the  cargo  at  an  interme- 
diate port,  a  pro  rata  freight  had  been  earned,  then  undoubtedly  wages  for 
that  portion  of  the  voyage  would  be  due.  See  also  Pothier,  Louages  Mar. 
n.  180,  and  Valin,  Comm.  tome  i,  p.  688,  on  the  4th  art.  of  book  3,  tit.  4, 
of  the  French  Ordinance. 

*  From  the  Spanish  cmhargar,  to  detain. 

^  Valin,  Comm.  tome  i,  p.  690.  Pothier,  Lavages  Mar.  n.  181.  Bvale 
V.  Thompson,  4  East's  R.  559.  Hadlaj  v.  Clarh,  S  T.  R.  259.  M Brule  v. 
Mar.  Ins.  Co.,  5  Johns.  R.  303.  Baylies  v.  Fetli/placc,  7  Mass.  R.  325.  An 
embargo  is  sometimes  ccjuivocal.  If  the  result  is  tliiit  the  vessel  is  allowed 
to  depart,  then  the  detention  retains  its  original  character  of  a  temporary 
seizure.  If  the  embargo  precedes  a  war,  and  is  merged  in  a  war,  then  the 
character  of  hostility  is  impressed  on  the  original  seizure,  o/>  initio.  The 
Boedcs  Lust,  5  Rob.  Adm.  R.  219.  Jacobsen's  Sea  Laws,  book  4.  ch.  3, 
p.  382. 

*  Marshall  v.  Montgomery,  2  Dallas's  R.  170.  Abbot  on  Ship,  part  4, 
ch.  2,  p.  413,  n.  1,  by  Story ;  and  the  cases  cited  in  the  last  note.  The 
French  ordinance  gave  the  seamen,  hired  by  the  iiiontli,  half  wages  during 
such  a  detention.     L'Ord.  dc  la  Mar.  liv.  3,  lit.  1,  art.  5. 


284  WAGES  IN  CASF,  OF  SIIirVVRKCK. 

3.  Shipwreck.  All  ilic  aiuhorities  of  tlir  maritime  law 
ai»ivc  thai,  in  casos  of  wiock,  where  })arts  of  tlie  ship 
are  saved  l)\  \\\v  cxcrlioiis  of  llie  seamen,  they  have  a 
lien  on  \\  hat  is  thus  saved  lor  some  kind  and  extent  of 
compensation.  The  doubt  in  these  cases  has  been, 
whether  it  was  to  hv  a  eom[)ensation  in  the  natm'e  of  sal- 
vage for  their  exertions  in  saving  the  pro])ertj,  and  to 
be  confined  to  that,  or  ^^hether  the  case  of  shipwreck 
constituted  a  special  exception  to  the  rule  that  freight 
must  have  bc'en  earned,  to  entitle  to  wages,  and  thus 
preserved  the  lien  for  the  wJiole  wages  antecedently 
earned,  with  perhaps  an  additional  compensation  in  the 
nature  of  salvage.  The  authorities  bearing  upon  this 
question  are  not  very  clear. 

The  laws  of  Oleron  are  not  explicit  enough  to  throw 
much  light  upon  the  subject.  They  recognise,  however, 
the  lien,  for  some  compensation.^  The  laws  of  Wisbuy 
are  more  express  and  speak  of  wages,  in  terms.  "  If 
they  [the  seamen]  aid  the  master  in  the  salvage,  he  will 
owe  them  their  wages.  If  they  do  not  aid  him,  he  will 
owe  them  nothing,  and  they  shall  lose  their  wages,  the 
same  as  if  the  ship  had  perished."  ^  The  Hanseatic  ordi- 
nances are  not  clear  upon  the  point.  That  of  1591  de- 
clares that  "  if  the  seamen  refuse  to  assist  the  master, 
and  the  ship  perishes,  they  shall  have  neither  wages,  nor 
any  other  reward  f  the  ordinance  of  1614  speaks  of  a 
salvage  reward,  to  be  paid  out  of  the  property  saved,  by 


'  Jugemens  D^ Oleron,  art.  3,  Pard.  tome  i,  p.  324. 
"^  Droit  Mar.  de  Wisbuy,  art.  17.     Pard.  tome  i,  p.  471. 
'  Droit  Mar.  de  la  Ligue,  ans.  {Reccs  de  1591,)  art.  45.     Pard.  tome  ii, 
p.  520. 


WAGES  IN  CASE  OF  SHIPWRECK.  285 

arbitration.^  But  the  French  ordinance  is  express.  "  If 
any  part  of  the  vessel  is  saved,  the  seamen  hired  for  the 
voyage,  or  by  the  month,  shall  be  paid  their  wages  already 
earned,  from  the  materials  which  they  have  saved  ;"-  and 
the  payment  of  wages,  eo  nomine,  and  to  the  full  extent, 
if  the  materials  saved  are  sufficient,  is  recognised  by  the 
commentators.^  All  tliese  ordinances  declare  the  duty  of 
the  mariner  to  remain  by  and  assist  in  preserving  the 
■wreck. 

In  England,  the  question  had  never  been  directly  ad- 
judicated, in  the  common  law  courts,  when  Lord  Tenter- 
den  wrote  his  treatise."*  In  this  country,  in  the  District 
Court  for  Pennsylvania,  Judge  Peters  w^as  long  in  the 
practice  of  decreeing  a  compensation  equivalent  to  wages, 
holding  that  the  mariner's  contract  is  not  dissolved  by 
shipwreck.^  The  present  judge  of  that  court  has  de- 
creed wages  out  of  portions  of  vessel,  or  cargo,  saved,  and 
seems  to  put  it  on  the  ground  of  salvage,  for  he  holds  that 
a  new  lien  arises  thereon,  the  original  contract  being  an- 
nulled, where  the  wreck  occasions  a  total  loss  of  the 
freight.^  The  Supreme  Coint  of  Massachusetts  and 
that  of  New'  York,  have  inclined  to  treat  the  lien  as  aris- 


'  Ibid.  p.  513,  art.  29. 
'■'  VOrd.  de  la  Mar.  liv.  3,  tit.  4,  art.  9. 

^  Valin,  Comm.  tome  i,  p.  703.  Potliicr,  Lounges  Mar.  n.  1S5.  Sau- 
tayra,  Code  de  Commcrcr,  cxplif/H^,  p.  170,  (Paris,  183G.) 

•  Abbot  on  Ship,  part  1,  cli.  2,  p.  152. 

•  Taylor  \.  The  Cato,  1  Telcrs's  Adin.  R.  18.  Giles  v.  The  Cynthia,  2 
Ibid.  203.  Chnjton  v.  The  Harmony,  Ibid.  70,  79.  Weeks  v.  The  Calha- 
rina  3fanV/,  Ibid.  124.  In  tbosc  cases,  it  is  intimated  that  there  may  be  a 
claim  for  compensation  beyond  wages,  if  the  property  saved  warrants  it. 

•  Adams  V.  Tha  Sophia,  Gilpin's  R.  77.  Drachclt  v.  The  JlcrculcSy  Ibid. 
184. 


286  WAGES  IJN   CASE  OP'  SIIirvVllECK. 

m'^  by  wajof  salva«j;o.'  Jii  (he  District  Court  for  Maine, 
Judfio  Warr  lias  rccoiiiiised  the  doctrine  that  tlie  wreck 
is  })ledi2,c{l  h\  \\\c  inaritiinc  ]a\\  (or  tlie  paynnnitof  wa^es; 
but  Uv  holds  that  the  seamen  arc  not  enlitled,  if  the  ma- 
terials are  saved  by  other  persons;  that  the  original  con- 
tract l)V  wliich  the  seaman  is  bound  to  the  vessel,  is  not 
dissolved  1)\  the  shi[)wreck,  as  long  as  the  seamen  re- 
main by  it,  but  tiiat  it  is  dissolved,  if  they  abandon  it.^ 
In  the  Circuit  Court  for  the  District  of  Massachusetts, 
the  allowance  was  j)ut  upon  the  ground  of  salvage, 
ado})ting  the  wages  earned  as  a  measure,  in  ordinary 
cases,  leaving  an  additional  recompense  to  be  made  for 
cases  of  extraordinary  merit.^  The  court  intimated, 
however,  that  it  might  be  more  consistent  with  the  prin- 
ciple of  the  rule,  that  the  earning  of  wages  shall  depend 
on  the  earning  of  freight,  to  hold  that  the  case  of  ship- 
wreck constituted  an  exception  from  the  rule,  and  that 
the  claim  to  wages  was  fully  supported  by  the  maritime 
policy  on  which  the  rule  itself  rests.^  This  doctrine  was 
subsequently  asserted  by  Lord  Stowell,  in  an  elaborate 
judgment,  in  which  he  held  that  the  original  contract 
was  not  dissolved  by  the  shipwreck  ;  that  the  duty  is  im- 
perative to  remain  by  the  wreck,  and  that  the  lien  for 
w^ages  attaches  upon  a  part,  as  well  as  the  whole  of  the 

*  Frothingham  v.  Prince,  3  Mass.R.  568.  Coffin  v.  Storer,  5  Ibid.  252; 
2  Dane's  Abridg.  462.     Dunnetl  v.  Tomhagen,  3  Johns.  R.  154. 

*  Leicis  V.  The  Elizabeth  and  Jane,  Ware's  R.  41. 

3  The  Two  Catharines,  2  Mason's  R.  319.  See  also  The  Saratoga,  2 
Gallis.  R.  164,  183. 

*  The  Two  Catharines,  2  Mason's  R.  334.  In  a  note  to  his  edition  of 
Abbot,  Mr.  Justice  Story  has  said  that  he  put  the  allowance  of  wages  in 
case  of  shipwreck  upon  the  grounds  of  a  qualified  salvage,  because  the  ex- 
ception to  the  rule  had  not  at  the  time  been  clearly  established.  (Abbot  on 
Ship.  p.  451,  n.  1,  Amer.  edit.  1829.) 


WHETHER  A  MARINER  CAN  BECOME  A  SALVOR  OF  HIS  O^V]N  SHIP.  287 

ship,  and  that  the  rule  of  wages  has  the  advantage  on 
grounds  of  pohcy.^  These  cases,  therefore,  seem  to 
estabhsh  the  case  of  shipwreck,  and  a  saving  of  any 
part  of  the  ship,  as  an  exception  to  the  rule  that  freight 
must  be  earned  before  wages  are  due  ;  that  ordinarily 
the  claim  must  be  limited  to  the  wages  ;  although  the 
learned  judges  did  not  deny  that  very  extraordinary  ch- 
cumstances  might  give  a  title  to  further  compensation 
in  the  way  of  salvage.^ 

This  interesting  question,  whether  a  mariner  can  en- 
tide  himself  as  a  salvor  of  any  part  of  his  own  ship,  or 
her  cargo,  must  perhaps  always  remain  to  be  determined, 
under  certain  general  principles,  from  the  circumstances 
of  every  case.  From  what  has  been  said  of  the  claim 
for  wages,  in  cases  of  wreck  and  a  saving  of  the  materi- 
als, it  may  seem  that  the  distinction  between  a  claim  for 
salvage  compensation  and  a  claim  for  wages  is  but 
shadowy.  The  principle,  however,  deducible  from  the 
authorities  is,  that  shipwreck  does  not  dissolve  the  mari- 
ner's contract,  at  least  so  long  as  the  ship's  company 
are  kept  together  by  the  master,  or  mate,  or  whoever  suc- 


'   The  Nrpttme,  1  Ilagg.  Adm.  R.  227. 

*  Ibid.  p.  237.  The  Tiro  Catharines,  ante,  and  Pitman  V.  Hooprr,  3  Sum- 
ner's R.  GO.  Mr.  Cliancellor  Kent  says,  "The  equitable  claim  which  sea- 
men may  have  upon  the  remains  of  the  wreck  is  rather  a  claim  for  salvage, 
and  seems  to  be  incorrectly  denominated  in  the  books  a  title  to  wages. 
Wages,  in  such  case,  would  be  contrary  to  the  great  principle  in  marine 
law,  that  freight  is  the  niolher  of  wages,  and  the  safety  of  the  ship  the 
mother  of  freight."  3  Kent's  Comm.  190,  edit,  1840.  It  is  not  for  mc  to 
controvert  so  great  an  authority.  But  my  researches  have  led  to  the  con- 
clusion that  the  tendency  of  the  doctrine  is  to  iii;ikc  the  case  of  shipwreck, 
with  a  total  loss  of  freii'lil,  as  stated  in  the  text,  a  clear  exception  to  the 
general  rule;  and  that  there  is  suflicient  authority  in  the  maritime  law  to 
establibh  it  as  such. 


288  WIIF/rilER  A  MARINKR  CAN  BECOME  A  SALVOR  OF  HIS  OWN  SHIP. 

cecds  ill  niuliority,  and  that  it  coiitiniios  to  be  their  duty 
as  long  as  there  is  any  tiling-  to  ])c  done,  to  hibor  in  the 
preservation  of  llie  vessel  and  earj^o,  out  of  which,  if 
saved,  thev  will  l)e  entitled  to  their  wages.'  Proceeding 
from  this  })rineij)le,  as  a  guide,  the  cases  in  which  the 
question  of  a  further  reward  than  wages  may  be  consid- 
ered, divide  themselves  into  two  classes.  First,  where 
the  mariner's  relation  to  the  vessel  has  been  dissolved, 
(le  facto,  or  by  operation  of  law,  as  it"  the  master,  or  his 
successor  in  authority,  in  case  he  may  have  perished,  had 
abandoned  the  vessel  and  authorized  the  crew  to  leave 
her.  Second.  Where  the  relation  is  not  dissolved,  but 
all  parties  continue  to  labor  in  their  legal  duty,  but  where 
the  services  in  saving  the  property  are  highly  meritorious, 
the  hazard  very  great,  and  the  mariner  may  seem  to  have 
so  far  exceeded  the  demands  of  his  ordinary  duty,  that  a 
claim  seems  in  equity  to  arise  for  a  further  compensation 
than  the  pittance  of  w^ages  that  may  be  due. 

In  the  first  of  these  cases,  there  is  litde  room  for  dou])t 
that  the  seamen  may  become  salvors  of  their  own  ship. 
In  the  case  of  The  Blaireau,  a  single  seaman  was  acci- 
dentally left  on  board  of  a  valual)le  ship  in  distress,  the 
master  and  the  rest  of  the  crew  having  abandoned  her. 
He  lightened  the  ship,  put  her  before  the  wind  and  hoisted 
a  signal  of  distress,  and  the  next  day  she  was  boarded  by 
another  ship's  company,  w  horn  he  assisted  in  bringing  her 
into  })ort.  The  Supreme  Court  of  the  United  States 
held  that,  by  deserting  the  shij)  with  his  entire  crew,  the 
master  had  absolved  this  man  from  his   contract,  and  he 

'  The  goods  arc  liable  to  wages  as  well  as  the  materials  of  the  ship,  in 
cases  of  wreck  ;  though  it  seems  that  the  parts  of  the  ship  should  be  first 
exhausted.     Clayton  v.  The  Harmony,  I  Peters's  Adm.  R.  5S. 


MARINERS   BECOMING  SALVORS  OF  THEIR  OWN  SHIP.      289 

was  admitted  as  a  salvor  on  an  equal   footing  with  the 
stranger  crew.^     Lord  Stowcll,  after  definino-   the  gen- 
eral  character  of  a  salvor  and  alluding,  probably,  to  such 
a  case  of  the  dissolution  of  the  contract  by  extraordinary 
circumstances,  said,  "  I  will  not  say  that,  in  the   infinite 
range  of   possible   events   that   may   happen   in  the  in- 
tercourse of  men,  circumstances  might  not  present  them- 
selves,   that    might  induce  the  court  to  oi)en    itself   to 
their   [seamen's]  claim  of  a  persona  standi  in  judicio. 
But    they    must    be    very    extraordinary    circumstances 
indeed ;    for    the    general    rule    is    very  strong    and  in- 
flexible, that   they  are    not    ])ermittcd    to    assume    that 
character."^     The   Supreme  Court  of  the  United  States 
have  again  recognised  the  same  doctrine,  that  extraordi- 
nary events  may  occur,  by  which  a  mariner's  connection 
with  the  ship  may  be  dissolved.^    The  analogies,  too,  are  in 
favor  of  it.     By  a  rescue  of  their  ship  from  an  enemy, 
mariners  are,  by  the   laAV  of  nations,  treated   as   salvors, 
upon  the  ground  that  it  is  no  part  of  their  general  duty 
as  seamen  to  attempt  a  rescue/     The  capture  so  far  sus- 
pends their  contract,  that  they  have  a  right  to  wait  inac- 
tively the   doings   of  tlie   captors  and    tlic   result    of  the 
prize  proc(M'dings.^     So  too,  in   the   analogous   cases  of 
pilots,  who  sustain,  w  hen  on  board,  some  legal  relation  to 
the  vessel,  it  seems  to  be  well   settled,  that   for  services 
beyond  the  line  of  tli(,ir  a])pi()])riate  duty,  or   under  cir- 

'  Manoji  V.  The  Ship  Blaircau,  2  Cranch's  R.  240,  270. 
-   The  Neptune,  \  Hagjj.  Adm.  R.  236,  237. 
'  Hohart  V.  Dro-ran,  10  Tcters's  S.  C.  R.  108. 

*  The    Tiro   Fficnds,  1  Rob.  Adm.  R.  271.     Clayton   v.   The  ITnrmony, 
1  Pelcrs's  Adm.  R.  7(i,  79. 

*  Ante. 

37 


290  WAGES  IN  CASE  OF  SICKNESS  AND  DEATH. 

ciimstanccs  to  ■wliich  lliosc  duties  do  not  justly  attach, 
they  may  chiim  as  salvors/ 

\\  itii  rc'iiard  to  \hc  other  elass  of  cases,  there  is  more 
diflieultv.  Mr.  .Itistice  Story,  deliverinjj;  the  opinion  of 
th(>  eourt  in  J/olxirt  v.  Dwqaji,  said  of  the  cases  in  which 
seamen  may  become  salvors,  "  Extraordinary  events  may 
occur  in  which  their  connection  with  the  ship  may  be 
dissolved  dc  facto,  or  by  operation  of  law,  or  they  may 
exceed  their  proper  duty,  in  which  cases  they  may  be  per- 
mitted to  claim  as  salvors."  ^  When  mariners  may  be 
said  to  have  exceeded  their  proper  duty,  the  legal  rela- 
tion being  still  undissolved,  is  certainly  not  capable  of 
definition  apart  from  circumstances.  There  is  much  in- 
trinsic difficulty  in  the  question.  But  there  are  cases  in 
which  a  salvage  compensation  has  been  given,  besides  the 
dicta  which  tend  to  support  the  doctrine.^ 

4.  Sickness  and  death  of  the  mariner.  The  ample 
provisions  of  the  maritime  law  to  secure  a  proper  treat- 
ment of  seamen  in  cases  of  sickness  have  been  stated  in 
a  former  part  of  this  treatise.  It  is  now  to  be  added  to 
these,  that  sickness,  or  disability,  occurring  in  the  service 


'  Hohnrtv.  Drogan,  10  Peters's  S.  C.  R.  108.  Dulancy  v.  The  Pelagio, 
Bee's  R.  212.  Hand  v.  The  Elvira,  Gilpin's  R.  CO.  The  Joseph  Ha^-vey,  1 
Rob.  Adm.  R.  306.  The  General  Palmer,  2  Hagg.  Adm.  R.  176.  The 
Cilij  of  Edinburgh,  2  Ibid.  333.  See  also  the  case  of  an  agent  becoming  a 
salvor.     The  Happy  Return,  2  Hagg.  Adm.  R.  198. 

2  10  Teters's  S.  C.  R.  122. 

^  Taylor  v.  The  Cato,  1  Peters's  Adm.  R.  48.  Claytonr.  The  Harmony, 
Ibid.  70,  79.  Wechs  v.  The  Catharine  Maria,  Ibid.  424.  The  Two  Cath- 
arines, 2  Mason's  R.  319.  Abbot  on  Ship,  part  4,  ch.  2,  sec.  6,  and  the 
cases  cited  ante.  This  question  is  of  course  wholly  aside  from  those  cases 
where  a  higher  reward  is  claimed  on  the  ground  of  a  new  contract.  See 
ante,  pp.  28,  46,  47. 


WAGES  IN  CASE  OF  SICKNESS  AND  DEATH.  291 

of  the  ship,  do  not  interrupt  the  mariner's  wages,  whether 
he  remains  on  board,  or  is  left  at  a  foreign  port.'  The 
foreign  writers  lay  down  the  same  limitation  as  that 
which  I  have  stated  to  apply  to  the  right  of  being  cured 
at  the  ship's  expense  ;  that  the  sickness  or  injury  should 
occur  in  the  ship's  service  and  not  through  any  fault  or 
vice  of  the  party  himself:  otherwise,  he  will  not  be  en- 
titled to  receive  wages.^ 

When  recovered,  it  is  the  mariner's  duty  to  rejoin  the 
ship,  if  opportunity  offers  ;  and  if  he  neglects  to  do  it, 
he  cannot  recover  wages  beyond  the  time  when  he  could 
have  rejoined  it.^  It  has  been  held  that  if  the  disability 
of  a  seaman  takes  place  before  the  voyage  begins,  no 
wages  are  due,  if  he  does  not  proceed  on  the  voyage  ; 
but  it  seems  that  he  would  in  equity  be  entitled  to  some 
compensation  for  the  services  actually  rendered  before 
the  ship  sailed.'* 

The  extent  to  which  wages  may  be  claimed  by  the 
representatives  of  a  mariner,  who  dies  during  the  voyage, 
is  a  vexed  question.  There  is  no  room  for  doubt  that  by 
the  general  maritime  law  wages  are  universally  allowed 
up  to  the  time  of  the  decease.  Whether  they  are  also  to 
be   continued  up  to  the   prosperous  termination  of  the 


'  Jugemens  D'Olrron,  art.  C,  7,  Tardessus  tome  i,  p.  327.  L'Ord.  de  la 
Marine,  liv.  3,  tit.  4,  art.  11  ;  and  the  other  foreign  ordinances,  cited  ante, 
Part  II,  ch  3,  p.  106,  107.  Chandler  v.  Grieves,  2  II.  Bl.  R.  GOG.  Nater- 
strom  V.  The  Hazard,  Bee's  R.  411.  Ex  parte  Giddimrs,  2  (Jallison's  R.  5G. 
Hart  V.  The  Little  John,  1  Petcrs's  Adm.  R.   117.     Willia?ns  v.  The  Hope, 

Ibid.  138. 

*  Polhier,  Louages  Mar.  n.  190.     Ante,  Part  IT,  cli.  3,  p.  107. 
»  Williams  V.  The  JLrpc,  1  Petcrs's  Adm.  R.  138. 

♦  Ex  parte  Giddings,  2  Gallison's  R.  50. 


292  WAGF.S  IN  CASK  OF   SICKNKSS   AND  DF.ATII. 

vovaw,  as  if  i\\v.  maiincr  liad  lived  and   iKnlbrmod  his 
diitv,  admits  of  coiurovcrsy. 

By  the  Kliodiaii  law,  under  which  it  seems  to  have 
been  eustomarj  to  hire'  mariners  by  the  year,  the  wages 
lor  the  entire  year  were  due  to  the  heirs  of  the  seaman 
N\  iu)  died  during  the  year.'  The  Laws  of  Olcron  are 
less  elear.  The  text  which  I  have  most  used,  in  the 
article  directing  a  sick  mariner  to  be  put  on  shore,  has  a 
passage  winch  maybe  rendered  thus :  "If  the  ship  is 
ready  to  sail,  it  ought  not  to  wait  for  him,  but  may  go 
awav ;  and  if  he  gets  well,  he  ought  to  have  his  pay  all 
the  while;  and  if  he  dies,  his  wife  or  his  heirs  ought  to 
have  it  for  him."^  It  is  not  very  easy  to  extract  from 
this  ordinance  any  other  meaning  than  that  the  mariner's 
wages  are  to  run  during  his  sickness,  in  case  he  dies,  as 
they  do  when  he  recovers  :  there  is  nothing  in  the  text 
which  positively  warrants  the  construction  that  they  are 
to  be  continued  after  his  decease.^     So  too,  the  Laws  of 

'  "  Si  scapha,  funihus  quihus  navis  ligata  erat  ruptis,  cum  navigantibns  in 
ea  nautis  evcrsafucrit,el  nantce  perierinl  ant  ohierint,  merces  annua,  usi/ucdum 
annus  integer  exactus  fuerit,  nautarum  heredibus  solvatur."  Droit  Mar.  Dcs 
Rhodiens,  xlvi,  Pardessus,  tome  i,  p.  257, 

'  "  Et  si  la  neef  est  preste  a  s'en  aler,  elle  ne  doit  pas  demourer  pour  li,  ainz 
se  doit  aller  ;  et  s'il  guarit,  il  doit  avoir  son  louyer  tout  a  long  ;  et  sHl  moerge, 
sa  femme  on  scs  privh  Ic  doihvent  avoir  pour  li.'"  Pardessus,  tome  i,  p.  328, 
art.  7,  Jugemens  D'Oleron.  In  the  text  of  Cleirac,  the  passage  reads  '' et 
sil  guarit,  il  doit  avoir  sou  loycr  tout  complant,  en  rabattant  les  frais,  si  le 
maistre  luy  en  a  fait ;  et  sil  meurt,  sa  femme  et  ses  prochains  le  dot  vent  avoir 
pour  luy."  Cleirac  (Les  Us  et  Cout.  do  la  Mer.)  on  the  7ih  article  of  the 
Laws  of  Oleron. 

'  More  than  thirty  years  since,  the  venerable  Judge  Davis,  of  the  Dis- 
trict Court  for  Massachusetts  District,  had  occasion  to  examine  this  ques- 
tion. His  judgment,  almost  the  only  one  of  his  in  print,  with  the  ex- 
ception of  a  few  published  recently,  from  lime  to  time,  in  a  periodical  work, 
may  well  occasion  regret  that  more  of  his  learned  and  wise  opinions,  are 


WAGES  IN  CASE  OF  SICKNESS  AND  DEATH.  293 

Westcapeile,  of  Wisbuy  and  of  the  Hanse  Towns,  which 
are  all  reproductions  of  the  same  code,  provide  nothing 
more  than  that  the  mariner  who  is  sick  or  dies  is  to  have 
his  fiiU  ivages ;  w^hich,  literally,  means  all  his  wages 
earned ;  and  the  context  will  support  nothing  more.^ 
The  Consolato  del  Mare  is  explicit.  It  provides  that 
wdiere  the  mariner  is  hired  by  the  month,  and  dies,  his 
heirs  shall  be  paid  for  all  the  time  that  he  has  served  :  if 
hired  by  the  voyage,  and  he  dies  before  the  ship  sails, 
they  are  to  receive  a  fourth  of  his  stipulated  hire  ;  and  if 
he  dies  after  the  ship  has  sailed  and  before  her  arrival  at 
the  place  of  destination,  they  are  to  receive  a  half.'-  The 
French  Ordinance  and  the  Code  de  Commerce  give  to  the 
heirs  of  seamen  hired  by  the  month  the  wages  to  the 
time  of  the  decease  :  where  they  are  hired  by  the  voyage, 
one  half  of  the  stipulated  hire,  if  the  party  dies  on  the 
outward  voyage,  and  the  whole,  if  he  dies  on  the  return 


not  accessible  to  the  profession.  He  discussed  with  great  acumen  the  pas- 
sage above  cited  from  Cleirac,  and  from  analogous  provisions  in  the  ancient 
ordinances,  formed  the  conclusion  that  nothing  more  was  intended  than 
that  there  should  be  no  diminution  of  wages  on  account  of  and  during 
sickness,  whether  the  party  died  or  recovered.  Naterstrom  v.  Ship  Hazard, 
printed  in  the  Appendix  to  Bee's  Adm.  R.  p.  441. 

'  Lois  dc  VVcslcapellr,  Jugctncnl  7,  Pardessus,  tome  i,  p.  374.  Droit  Mar. 
de  Wisbuy,  art.  21,  Ibid.  p.  474.  Droit  Mar.  dc  la  Lignc.  Ans.  46.  Ibid. 
tome  ii,  p.  521.  In  the  original  texts  the  phrases  are  "  211(0  CVC  -^llVf,"  and 
"  TXiUx  ©f  ilfl'  J^CIIIC  ;  "  which  carry  no  other  meaning,  ex  vi  termini,  than 
what  is  above  stated.  M.  Pardessus  renders  them  by  the  corresponding 
phrases  '^son  loi/cr  en  totahti,"  and  ^^  rintrgralilc  dr  Icurs  loj/rrs.'"  He 
gives  no  other  effect  to  his  translation  than  the  idea,  that  the  integrity  of  the 
wages  is  not  to  b(,-  broken  liy  ami  during  the  sickness.  If  he  had  under- 
stood the  original  to  import  the  rntiru  wages  for  the  residue  of  the  voyage, 
his  notes  would  have  made  known  so  remarkable  an  effect  of  the  law. 

»  Consolato  del  Mare,  ch.  84,  [129],  85,  [130J,  Pardessus,  tome  ii,  p.  124, 
125. 


291-  WAGES  IN  CASE  OF  SICKNESS  AND  DEATH. 

voyage;  and  whore  they  arc  hired  on  the  freight  or  profits 
of  tlie  voyage,  the  whole  sti|)idated  share,  provided  the 
vessel  has  sailed.'  This  distinction  is  made  in  favor  of 
those  iiired  by  the  voyage  or  on  profits,  on  account  of  the 
greater  risks  assumed  by  them  in  the  contraet.- 

In  England,  there  has  been  no  direct  decision  of  this 
question.  The  only  case  bearing  upon  it  is  that  of  Cut- 
ter V.  Poicell,'^  which  is,  in  truth,  of  slight  authority, 
since  the  question  turned  ujion  the  terms  of  a  note  given 
by  the  master  to  a  seaman  Iiired  by  the  run  from  Jamaica 
to  Liverpool.  The  case  of  Annstrotig  v.  Smith  does  not 
settle  any  thing  more  than  that  some  wages  are  due.^ 

In  this  country,  there  have  been  contradictory  decisions, 
as  to  the  right  to  wages  up  to  the  termination  of  the 
voyage,  though  all  the  cases  admit  the  right  to  recover  to 
the  time  of  the  mariner's  decease.  Judge  Peters,  in  the 
District  Court  for  Pennsylvania,  held  in  several  cases 
that  the  wages  were  due  to  the  end  of  the  voyage,  as  if 
the  mariner  had  lived  and  performed  his  duty.^  One  of 
these  decisions  was  affirmed  by  Mr.  Justice  Washington, 
on  appeal.''  Both  these  learned  judges  relied  much  on 
the  seventh  article  of  the  Laws  of  Oleron,  which  they 
understood  to  import  full  wages  for  the  entire  voyage. 


*  L'Ord.  de  la  Marine,  liv.  3,  tit.  4,  art.  13,  14.     Code  dc  Commerce,  art. 
263. 

*  Valin,  Comm.  tome  i,  p.  746.     Pothicr,  Louagcs  Mar.  n.  189.     Sau- 
tayra,  Code  de  Commerce  Eocpliqid,  p.  172. 

^  6  T.  R.  320.     See  this  case  and  some  observations  upon  it  ante.  Part  I, 
ch.  2,  p.  67. 

*  1  Bos.  and  Pull.  N.R.  299. 

*  Walton  V.  The  Neptune,  1  Pelers's  Adra.  R.  142.     Scott  v.  Greenwich, 
Ibid.  155.     Jachxon  v.  Sims,  Ibid.  157. 

®  Sims  V.  Jackson,  1  Wash.  R.  414. 


WAGES  WHERE  THE  VOYAGE  IS  ABA]S^DO^'ED.  295 

In  the  District  Court  for  South  Carolina,  Judge  Bee  af- 
terwards held  that  wages  were  due  only  to  the  time  of 
the  death,  and  that  such  had  always  been  the  received 
practice  of  that  District.^  Judge  Davis  followed,  in  the  de- 
cision already  cited,  and  on  a  full  and  critical  examination 
of  the  ancient  ordinances,  and  particularly  of  the  article 
in  the  Laws  of  Oleron,  held  that  the  wages  could  not  be 
recovered  bevond  the  death,  and  that  the  usa^e  in  Massa- 
chusetts  had  always  been  so.- 

In  the  whale  fishery,  by  the  terms  of  the  usual  arti- 
cles, the  legal  representatives  of  a  mariner,  dying  during 
the  voyage,  are  entitled  to  such  part  of  the  whole  amount 
of  his  stipulated  share  as  the  time  of  his  services  on  board 
shall  be  of  the  whole  term  of  the  vovage.^ 

5.  Voluntary  abandonment  or  change  of  the  voyage,  by 
the  owner  or  master. 

It  has  been  shewn  in  a  former  chapter  that  the  mari- 
ner, when  engaging  his  services,  may  claim  to  have  a 
fair,  definite  and  intelligible  descri])tion  of  the  voyage, 
as  part  of  the  written  contract.^  But  whether  the  con- 
tract be  in  writing,  or  by  parol,  after  having  engaged  to 
go  on  a  voyage,  the  mariner  has  an  interest  to  earn  what- 
ever may  be  earned  under  his  contract,  and  a  breach  of 
it  by  the  ship-owner,  or  master,  for  or  by  reason  of  any 
other  caus(>  than  a  vis  major,  has  always  been  admitted 
by  the   general   law    to   be  a   case   for   damages.     This 


'  Carey  v.  The  Kitty,  Bee's  R.  255. 

*  Naterstrom  v.  Ship  Hazard,  reported  in  Bee's  Adm.  R.  441.  See  also  a 
dictum  in  Lnscoml)  v.  Prince,  12  Mass.  R.  57G,  and  the  case  of  Jones  v. 
Smith,  4  Hall's  Am.  Lnw  Jour.  270. 

'  Sec  the  articles  in  tlie  Appendix. 

•  Ante,  I'arl  I,  chap.  3. 


296  WAGES  WllKKi:  TIIK  VOYAGE  IS  ABANDONED. 

would  1)1^  SO  l)v  \hv  general  principles  of  a  rontrnct  for 
liirc  ;'  and  in  ri'iiard  to  the  nuninor's  contract,  it  has 
been  the  policv  of  some  maritime  states  to  rei^nlate  spe- 
cifically the  damages  that  may  he  demanded  in  different 
cases.  Thus  the  Frencii  Ordinance,  in  case  the  voyage 
is  hroken  iij)  by  the  act  of  the  owner,  master,  or  freighter, 
before  the  ship  has  sailed,  gives  to  the  mariners  hired  by 
the  voyage,  the  days'-works  employed  by  them  in  eqnip- 
})ing  the  vessel,  and  a  (piarter  part  of  their  stipulated 
pay  ;  if  the  voyage  is  broken  up  after  the  ship  has  sailed, 
they  arc  to  receive  the  entire  pay;  and  those  hired  by 
the  month  receive  their  wages  for  the  time  they  have 
served,  with  the  necessary  means  of  returning  to  the  port 
of  departure.^  The  Code  de  Commerce  has  adopted  a 
more  favorable  measure  of  damages,  for  those  liired  by 
the  month.  In  addition  to  what  was  given  by  the  Ordi- 
nance, in  cases  where  the  voyage  is  abandoned  after  it 
has  conunenced,  it  gives  wages  for  half  of  the  presumed 
duration  of  the  residue  of  the  voyage.^ 

In  this  country,  there  is  no  settled  rule,  that  I  am 
aware  of,  to  govern  the  case  of  a  voluntary  abandonment 
of  the  voyage,  before  the  ship  sails.  It  is  a  case  not 
precisely  analogous  to  that  of  a  wrongful  discharge  of 
the  mariner  abroad,  in  which  we  have  a  settled  rule.^ 
At  least,  some  foreign  authorities  make  a  broad  distinc- 
tion, in  giving  damages,  between  these  two  cases.^ 
This  case  seems  more  nearly  to  resemble  that  where  the 


'  Pothier,  Traiti  du  cnntrat  de  lona<re,  n.  142. 

2  VOrd.  de  la  Marine,  liv.  3,  tit  4,  art.  3. 

^  Code  de  Commerce,  art.  252. 

♦  Infra. 

5  Code  de  Commerce,  art.  257,  270. 


VOYAGE   BROKEN  UP  BY  OWiSER  OR  MASTER.  297 

voyage  is  lost  by  the  fraud  of  the  owner,  or  master  ;  in 
which  the  Supreme  Court  of  the  State  of  New  York 
gave,  as  damages,  wages  from  the  time  of  the  shipment 
until  the  seaman's  return  to  the  port  of  shipment,  de- 
ducting such  wages  as  he  had  earned  and  received  dur- 
ing his  absence.^  So  too,  in  a  case  where  the  voyage 
was  broken  up  by  a  seizure  for  the  debts  of  the  owner, 
wages  to  the  time  of  the  seizure,  and  one  month's  addi- 
tional pay,  were  given  by  Judge  Peters.^  In  a  subse- 
quent case,  he  stated  that  his  practice  had  been,  where 
the  voyage  was  broken  up  for  the  interest,  profit,  or  con- 
venience of  the  owner,  to  give  from  one  to  three  months 
additional  wages,  according  to  the  circumstances  ;  giving 
to  the  owner  an  alternative ;  if  the  seaman  had  been  ac- 
commodated witii  a  passage  home  at  the  owner's  ex- 
pense, to  allow  the  cost  of  such  passage  to  be  substituted 
for  the  additional  wages.^ 

One  case  of  a  voluntary  abandonment  of  the  voyage 
in  a  foreign  port  is  provided  for  by  our  statute  law. 
When  the  ship  is  sold  abroad,  the  Act  of  1803,  chap.  62, 
requires  the  master  to  pay  the  mariners  the  wages  then 
due,  and  to  pay  to  the  American  consul  three  month's 
wages  in  addition,  two  thirds  of  which  are  for  the  benefit 

1  Iloyt  V.  Wihlfire,  3  Johns.  R.  510.  The  Supreme  Court  of  Massachu- 
setts once  held  that  a  mariner  of  a  vessel  which  was  seized  and  condemned 
for  a  violation  of  the  revenue  laws  of  a  foreign  country,  on  her  return 
voyage,  was  not  entitled  to  any  wages  after  the  seizure,  and  perhaps  not  to 
any  after  the  outward  voyage  was  finished.  Oxnard  v.  Dean,  (10  Mass. 
R.  143.)  It  docs  not  appear  whether  the  mariner  was  coiini/anl  of  the 
ofTencc  against  the  foreign  revenue  laws.  If  he  was  not,  the  case  is  not 
law,  as  I  humhly  conceive.     See  The  Malta,  2  Ilagg.  Adm.  R.  158. 

'  Wolf  V.  The  Brig  Oder,  2  Peters's  Adm.  R.  261. 

■"  Ifindman  V.  Shaw,  Ibid.  p.  2G4. 

38 


'20«>  WAGKS    IN    C.\SK   OF   DEVIATION. 

of  tlu>  mariners.'  The  nili;  liorc  acloi)loil,  ihoiigli  ap- 
])licil  in  tonus  lo  a  sale  of  the  vessel,  would  ordinarily 
1)0  ajiplii'd  to  other  eases  of  a  vohmtary  abandonment  of 
the  \(naii(\  But  these  cases  of  a  breach  of  the  mari- 
ner's contract  by  the  o^vncr  or  master,  open  a  question 
])urely  of  damages,  to  be  determined,  in  the  absence  of 
any  fixed  rule,  by  the  circumstances  of  the  case.  A 
Court  of  Admiralty  awards  such  damages  in  the  shape  of 
wages  ;  and  a  Court  of  Common  Law  in  a  special  action 
on  the  case.~ 

In  regard  to  a  change  of  the  voyage,  it  has  been  stat- 
ed, that  a  spontaneous  deviation  of  importance  entitles  a 
mariner  to  his  discharge  ;  and  if  he  does  not  see  fit  to 
leave  the  vessel,  he  is  entitled  to  additional  compensa- 
tion.'^ In  the  case  of  a  French  seaman,  who  had  ship- 
})ed  at  Nantz  for  a  voyage  to  New  Orleans,  thence  to 
Martinique,  and  from  thence  to  return  to  France,  and 
after  repeated  deviations,  the  ship  came  into  Philadel- 
phia ;  Judge  Peters  applied  the  rule  of  the  French  Ordi- 
nance, permitting  the  mariner  in  such  cases  to  quit  the 
vessel,  and  gave  wages  from  the  time  of  the  shipment  to 
the  date  of  the  libel.'*  In  another  case  of  a  British  sea- 
man who  insisted  on  his  discharge  in  a  foreign  port,  in 
consequence  of  a  wide  deviation  contemplated  by  the 
master.  Sir  Christopher  Robinson  gave  full  wages  to  the 
time  of  the  discharge.^ 

'  Sec.  3. 

'  See  the  case  of  Emerson  v.  Hoioland,  1  Mason's  R.  52,  53. 

^  Ante,  part  i,  ch.  2. 

*  Monin  V.  Bmtdin,  2  Peters's  Adm.  R.  415. 

»  The  Cambridge,  2  Hagg.  Adm.  R.  213. 


WAGES  IN  CASE  OF  WRONGFUL  DISCHARGE.  299 

6.   Wrongful  discharge  of  the  mariner. 

In  a  former  chapter,  I  liave  stated  the  principles  which 
govern  the  discharge  of  a  mariner  from  tlie  service  of  the 
ship  ;  and  have  defined  what  under  the  general  and 
statute  law  is  an  illegal  discharge. 

In  regard  to  the  measure  pf  damages,  when  a  seaman 
is  wrongfully  discharged,  the  maritime  law  of  continental 
Europe  makes  a  distinction  between  such  discharges 
abroad,  and  when  made  before  the  vessel  sails.  If  dis- 
charged in  a  foreign  country,  the  entire  wages,  with  the 
expenses  of  return,  are  given  ;  if  discharged  before  the 
vessel  saih,  only  a  third  of  the  w^ages  that  might  have 
been  earned  are  awarded,  for  the  reason  that  the  mariner 
can  readily  find  other  employment.'  The  master  was 
not  allowed  to  carry  the  damages  thus  paid  into  his  gen- 
eral account  against  the  owners."  It  does  not  appear 
that  this  proportion  of  one-third  has  been  adopted  in  our 
law,  in  cases  of  wrongful  discharge  before  the  vessel 
sails.  Damages  would  undoubtedly  be  recoverable,  in 
an  action  of  the  case  at  common  law,  or  by  a  libel  in  the 
Admiralty,  for  the  breach  of  the  contract,  to  be  regulated 
by  the  circumstances  of  the  case  ;  and  it  has  recently 
been  held  that  wages  for  the  voyage,  co  nomine,  arc  re- 
coverable in  the  Admiralty  in  England.^     For  a  wrong- 


»  Droit  Mar.  dc  Wishuij,  art.  3,  47.  Pard.  tome  i,  p.  4G5,  491.  Droit 
Mar.  de  la  Ligur  Ans.  {Rixis  dc  1591,)  art.  42,  43.  Tard.  tome  ii,  p.  519, 
520,  and  note.  VOrd.  dc  la  Marine,  liv.  3,  lit.  4,  art.  10.  Vo\\\\vx,Loua>r€s 
Mar.  n.  200,  207.     Jacobsen's  Sea  Laws,  book  2,  ch.  2,  p.  148. 

"  Ut  supra. 

'  The  mariner,  James  Sparks,  was  hired  on  the  7lh  of  Mnrcli,  1838,  hy 
the  master  of  Th<;  Cilij  of  Loudon,  in  the  port  of  London,  as  cook,  for  a 
voyage  to  Sydney,  in  New  Soutli  Wales,  thence  to  the  East  Indies,  and 
back  to  England,  at  21.  15s.  per  month.     Ho  came  on  lioard,  and  on  the 


300  WAGES  IN  CASE  OF   WRONGrUL  DlSC'llARfM:. 

fill  (Vischar^i^  abroad,  tli(^  iiilo  as  held  in  JMii;land  and  in 
tliis  conntr\,  is  ordinarily  to  allow  (nil  uaij,os  up  to  the 
prosjHMOus  ttMininalion  of  the  voyage,  with  the  cxjkmiscs 
of  it'tiiin  ;  deducting  what  the  nuuincr  may  have  earned 
in  the  mean  time  in  another  vessi;l.'     But  the  rule  is  not 


12tli  of  March  signed  the  mariner's  contract.  On  the  1 1th,  without  (as 
alleged)  any  cause  or  pretence,  the  master  discharged  and  compelled  him 
to  tjuit  the  vessel.  Sparks  obtained  employment  in  other  vessels,  but  did 
not  earn  as  much  as  he  would  have  done  had  he  gone  tiie  voyage  with 
The  City  of  London,,  which  lasted  si.\teen  months  and  twenty  days,  and  he 
sought  to  recover  the  whole  of  his  wages  for  that  time,  minus  the  money 
he  had  earned  in  other  ships.  For  the  owners,  an  objection  was  taken  to 
the  jurisdiction  of  the  court,  founded  on  the  fact  that  the  voyage  had  not 
commenced,  and  therefore  the  court  could  not  entertain  it  as  a  case  of 
7narincr's  ivagcs,  but  must  leave  the  party  to  his  remedy  by  an  action  at 
common  law  upon  the  agreement.  Dr.  Lushington  overruled  the  objec- 
tion, inasmuch  as  it  was  admitted  in  England  that  a  seaman  hired  for  a 
voyage,  and  the  voyage  has  actually  commenced  before  he  is  discharged, 
may  sue  in  ihe  Admiralty  for  his  wages  for  the  whole  voyage;  and  that 
there  is  no  essential  difference  between  a  discharge  just  before,  and  one 
just  after  the  voyage  has  commenced ;  the  means  of  measuring  the  dam- 
age are  the  same  where  the  voyage  proceeds,  so  that  the  court  would  not 
have  to  perform  the  function  of  a  jury,  as  it  would  where  the  voyage  does 
not  proceed,  in  estimating  the  damages.  He  therefore  admitted  the  Sum- 
mary Petition,  praying  for  the  whole  wages,  less  the  money  earned  in  the 
mean  time.  {The  "  City  of  London,"  High  Court  of  Admiralty,  November 
5,  1839,  Monthly  Law  Magazine,  vol.  vi,  p.  159.)  With  us,  I  apprehend 
there  could  be  no  diflicully  in  suing  in  the  Admiralty  for  damages  in  the 
nature  of  a  breach  of  contract,  where  the  ship  did  not  proceed  at  all 
on  the  voyage;  and  in  the  case  cited  the  learned  judge  states  that  in 
England  this  question  has  never  been  agitated  and  decided.  In  truth,  our 
Admiralty  Courts  constantly  exercise  the  functions  of  juries,  if  the  con- 
tract be  maritime.  The  case  is  important,  as  showing  the  disposition 
of  the  English  Court  to  adopt  no  less  a  measure  of  damages  than  the 
whole  wages  of  the  voyage,  in  the  case  of  a  wrongful  discharge  before 
the  voyage  begins. 

'  Robinctt  V.  The  Exeter,  2  Robinson's  Adm.  R.  2G1.  The  Beaver,  3 
Ibid.  92.  Mahoon  v.  The  Gloucester,  2  Peters's  Adm.  R.  403.  Rice  v.  The 
Polly  and  Kitty,  Ibid.  420.     Wtsberg  v.  The  St.  Olojf,  Ibid.  428.     Keane  v. 


WAGES  IN  CASE  OF  WRONGFUL  DISCHARGE.  301 

an  inflexible  one.  Sometimes  wages  have  been  allowed 
up  to  the  prosperous  termination  of  the  voyage  ;  and  in 
other  cases,  up  to  the  time  of  the  seaman's  return  to  the 
country  where  he  was  originally  shipped,  without  refer- 
ence to  the  termination  of  the  voyage.^  The  ])rinciple 
upon  which  they  proceed  is,  to  give  a  complete  indem- 
nity for  the  illegal  discharge  ;  and  this  is  conveniently 
measured  by  the  loss  of  time  and  the  expenses  incurred 
by  the  party.-  The  wages  which  he  has  earned  in  the 
mean  time,  may  be  deducted  from  these  expenses,  but 
not  from  the  w  ages  due  from  the  vessel  from  which  he 
was  wrongfully  discharged.^ 

There  is  one  case,  in  which  the  rule  concerning  dam- 
ages will  be  applied  within  narrower  limits.  Sir  William 
Scott  has- held  that  in  a  case  of  semi  iiaufragium,  when  a 
vessel  is  so  injured  that  it  is  doubtful  if  she  can  be  re- 
paired, or  the  repairs  cannot  be  made  for  a  long  time, 
during  which  it  would  entail  great  expense  on  the  owners 
to  support  the  mariners  in  a  foreign  country,  the  master 
may  discharge  them  upon  proper  conditions ;  viz.  the 
payment  of  their  passage  home,  and  wages  up  to  the 
time  when  they  reach  their  native  country ;  that  where 
the  seaman  is  urongfuUy  discharged,  as  from   tyranny, 

The  Gloucester,  2  Dall.  R.  3G.  Ex  parte  Giddings,  2  Gallison's  R.  56. 
Ward  V.  Ames,  9  Johns.  138.     Hoijt  v.  Wildfire,  3  Ibid.  518. 

'  Emerson  v.  JIuuland,  1  Mason's  R.  53.  T/ic  Beaver,  3  Robinson's 
Adm.  R.  92.  The  Exeter,  2  Ibid.  2R1.  Hoijt  v.  Wtldfirc,  3  Johns.  R.  518. 
Brooh  V.  Dorr,  2  Mass.  R.  39.  Ward  v.  Ames,  9  Jolins.  R.  138.  Sulli- 
van V,  Morgan,  11  Ibid.  06,  and  cases  in  Pelers's  Adm.  R.  cilcd  supra. 

'  Emerson  v.  Jlovland,  ut  supra. 

"  Ibid,  and  Ilulrlnuson  v.  Cooms,  Ware's  R.  65.  If  the  master  detains 
the  clothes  of  the  seaman,  they  may  be  recovered  for  in  the  Admiralty  in 
the  same  libel.     Ibid. 


;10'2         WAGES  m  case  of  wrongful  disceiarge. 

passion,  or  injiistico,  he  luis  a  right,  hy  liio  law  of  most 
countries,  to  (iiiuaiul  waji,es  till  the  return  of  the  ship  ; 
but  in  a  easi'  of  mere  misfortune,  a])i)roaihing  almost 
to  a  necessity,  ho  can  demand  them  only  up  to  his  own 
return  in  as  direct  a  mode  as  may  offer.' 

»  The  EU-abcl/i,  2  Dodson's  Adm.  R.  403. 


CHAPTER   III. 

OF     THE     PRINCIPLES      OF     FORFEITURE     APPLICABLE     TO 

WAGES. 

It  has  been  accurately  observed,  that  the  principles  of 
law  applicable  to  a  total  or  partial  forfeiture  of  wages, 
may  be  deduced  from  the  mariner's  contract.^  That 
contract  is  to  give  his  whole  time  and  utmost  exertions 
to  the  service  for  which  he  engages ;  not  to  violate  the 
discipline  or  economy  of  the  ship  ;  and  to  obey  all  law- 
ful commands.  ^V'hatever  amounts  to  a  breach  of  the 
mariner's  duty  under  his  contract,  as  expressed  in  the 
written  articles,  or  implied  by  law,  has  always  been  held 
to  affect  his  claim  for  wages.  The  practice  of  thus  en- 
forciiii:  hisobliuations  is  one  of  the  oldest  in  the  maritime 
law.  Thus  the  total  forfeiture  of  wages  for  desertion  is 
found  in  all  the  older  maritime  constitutions.-  So  too, 
the  principle  retpiiring  the  mariner  to  indemnify  the 
master,  or  owner,  for  expenses  incurred  in  })rocuring 
other  labor,  \\  hen  he  is  wrongfully  absent,  and  for  losses 
and   injuries    occasioned    by    his   default,   is    constantly 


'   The  Lima,  3  Ha??.  Adrn.  R.  359. 

*  Droll  Mar.  dc  Wishuy,  art.  G2.  Pardessus,  tome  i,  p.  500.  Consolato 
del  Mare,  ch.  112,  [157],  113,  [15R].  Ibid,  tome  ii,  pp.  Ml,  142.  Droit 
Mar.  de  la  Liguc  Ans.  (RerJs  dc  1614),  lit.  4,  art.  25.  Ibid,  tome  ii,  p.  542. 
UOrd.  dc  la  Marinr,  liv.  2,  tit.  7,  art.  3. 


o04  PRINCIPLES   OF   FORFEITURE. 

recognised.'  In  \hv  j)ractice  of  modern  times,  tliese  jirin- 
ciples  are  variously  ai)j)lied,  by  statute,  and  under  tlic 
general  inaritinn^  law." 

Ill  a  loiiiKU'  cliajitcM-,  the  several  offences  which  amount 
to  a  hreacli  of  the  mariner's  contract,  as  well  as  the 
statute  ol'li'iices,  have  been  stated  and  defined,  and 
the  effect  of  each  upon  his  compensation  is  there  pointed 
out/'  It  remains  only  to  state  the  general  principles 
applicable  to  the  civil  forfeitures  and  penalties  thus 
incurred. 

In  the  first  place,  the  forfeiture  of  wages  to  the  mas- 
ter, or  owner,  is  a  civil  compensation  for  injury  received, 
antecedent  to  any  statute  regulations.  Public  policy,  in 
a  variety  of  instances,  comes  in  aid  of  this  compensation, 
and  defines  the  offence  and  fixes  the  amount  of  damages, 
by  enactment ;''  but  the  forfeiture  is  founded  in  the  con- 
tract of  the  parties.  Pothier  states  the  ^vhole  ground- 
work of  the  contract,  showing  that  payment  depends  on 
the  performance  by  the  mariner  of  his  stipulated  duty. 
"  There  is  no  doubt,"  he  observes,  "  that  the  master 
owes  his  entire  wages  to  a  seaman  who  has  rendered, 
during  the  whole  time  of  the  voyage,  the  services  which 
by  his  contract  he  was  bound  to  render.  On  the  con- 
trary, where  the  seaman,  hy  his  own  fault,  has  failed  to 
fulfil  his  obligations,  there   is  no  doubt  that  the  master 

'  Jugemens  D'Oleron,  art.  5,  Pardessus,  tome  i,  p.  326.  Consolato  del 
Mare,  ch.  124,  [169].  Ibid,  toine  ii,  p.  147.  UOrd.  dc  la  Marine,  Viv.  2, 
tit.  7,  art.  5. 

*  Act  U.  S.  20  July,  1790.  Act  5  and  6  Wra.  IV.  ch.  19.  Code  de  Com- 
merce, art.  264.  Tlie  Pearl,  5  Rob.  Adm.  R.  199.  The  Mentor,  4  Mason's 
R.  84.     Chulman  v.  Tunison,  1  Sumner's  R.  373. 

'  Ante,  Part  II,  ch.  4. 

*  Ante,  ut  supra. 


PRINCIPLKS  OF   FORFEITURE.  305 

does  not  owe  him  the  pay  for  services  which  he  has  not 
rendered."  ^ 

Hence,  if  there  be  a  statute  forfeiture  created,  and  the 
misconduct  or  default  of  the  party  does  not  fall  within 
the  description  of  the  statute,  it  does  not  follow  that  the 
master  or  owner  is  without  remedy.  He  may  fall  back 
upon  the  original  principles  of  the  contract,  and  demand 
compensation  for  the  injury  received  ;  and  the  damages 
which  he  thus  seeks  to  set  off  against  the  claim  for  wages 
may  be  influenced  by  the  considerations  of  policy,  which 
the  Court  may  see  fit,  by  way  of  example,  to  apply  to 
the  oft'ence.^  But  such  damages  must  have  been  actually 
suffered,  or  must  be  legally  ascertainable,  before  com- 
pensation can  be  demanded  f  and  they  must  be  the  di- 
rect and  immediate,  not  remote  and  contingent  result  of 
the  acts  and  omissions  of  the  party  complained  of.^ 

Another  principle,  deducible  also  from  the  mariner's 
contract,  is  that  a  total  forfeiture  of  w^ages  is  ordinarily 
inflicted  by  the  maritime  law,  only  where  the  misconduct 
is  of  an  aggravated  character,  constituting  an  entire 
breach  of  the  contract.^     It  is  not  a  single  neglect  of 

'  Pothier,  Louagea  Mar.  n.  178. 

*  Cloulman  v.  Tuntson,  1  Sumner's  R.  373.  Knagg  v.  Goldsmith,  Gil- 
pin's R.  207.  Snell  V.  The  Independence,  lh\^.  140.  Drown  v.  The  Nep- 
tune, Ibid.  89.  Magee  v.  Ship  Moss,  Ibid.  219.  The  Baltic  Merchant,  Ed- 
wards's Adm.  R.  219. 

'  Manners  v.  The  Washington,  1  Petcrs's  Adm.  86. 

*  Mar.omber  V.  Thompson,  1  Sumner's  R.  384. 

*  In  the  case  of  The  Exeter,  (2  Rob.  Adm.  R.  261,)  Sir  William  Scott 
had  said  that  any  cause  which  will  justify  a  master  in  discharging  a  sea- 
man, during  the  voyage,  will  also  deprive  liitn  of  iiis  wages;  and  Lord 
Tenterdcn  quotes  the  doctrine  in  his  Treatise  on  Sliipping,  (part  4,  ch.  3, 
sec.  4.)  Upon  this  Dr.  Lushington  has  recently  observed,  tli:it  "  it  appears 
but  a  very  iulirm  test,  and  one  which  cannot  be  uniformly  adopted  and 

39 


'30G  rRLNCirLKs  ok  iorfkiturr. 

duty,  or  a  single  act  of  disobedience,  whicli  ordinarily 
carries  with  it  so  severe  a  })enalty.^  Desertion,  being  an 
utter  abandonment  and  breach  of  the  contract,  is  punish- 
ed uniformly  \\\xh  the  loss  of  all  wages.-  Absence,  for 
a  longer  or  shorter  period,  incurs  a  forfeiture  in  propor- 
tion to  the  damage  actually  sustained  and  the  circum- 
stances attending  it.^  Embezzlement,  unless  of  a  serious 
character,  is  generally  visited  with  contribution  only  to 
the  extent  of  the  injury  sustained.'*  Negligence,  unless 
amounting  to  that  habitual  inattention  to  ordinary  duties, 
which  would  expose  the  ship  to  danger,  incurs  a  forfeit- 
ure of  less  than  the  whole  wages  ;^  and  so  with  drunken- 
ness, unless  it  has  reached  a  habit  which  incapacitates 
the  party  from  the  ordinary  performance  of  duty.°     Dis- 

acted  upon  with  safety  in  transactions  with  seamen ;  for  in  case  of  disobe- 
dience of  orders  (presuming  that  the  orders  were  proper)  whether  a  master 
is  justified  in  discharging  a  seaman  or  not  during  the  voyage,  must  depend 
upon  circumstances  continually  varying,  and  to  a  great  degree  not  con- 
nected with  the  conduct  of  the  mariner  himself;  for  instance,  the  place 
where  the  disobedience  occurred,  whether  at  sea  or  in  aB-ritish  or  a  foreign 
port,  taking  into  consideration  also  the  provisions  of  Sir  James  Graham's 
Act.  [5  and  6  Wm.  IV.  ch.  19.]  The  discharge  of  a  seaman  for  an  offence, 
therefore,  can  hardly  be  a  test,  unless  the  offence  be  so  atrocious  as  to 
make  the  discharge  of  the  offender  absolutely  necessary  to  the  safety  of  the 
ship.  The  only  rule  which  I  can  get  to  guide  me  is  this,  that  the  wages 
may  be  forfeited,  not  in  cases  of  discharge  for  mere  disobedience  of  orders, 
but  where  the  disobedience  is  to  such  an  extent  as  to  render  the  discharge 
of  the  seaman  imperatively  necessary  to  the  safety  of  the  ship,  and  the 
due  preservation  of  discipline."  The  Blake,  High  Court  of  Admiralty,  July, 
1839.    Reported  Monthly  Law  Magazine,  December,  1840,  vol.  ix,  p.  202. 

*  The  Mentor,  4  Mason's  R.  90. 

*  Ante.  Part  II,  ch.  4,  p.  129. 

^  The  Baltic  Merchant,  Edwards's  Adm.  R.  86.     Snell  v.  The  Indepen- 
dence, Gilpin's  R.  207.     Cloutman  v.  Tunison,  1  Sumner's  R.  373. 

*  Ante,  Part  II,  ch.  4,  p.  142-145. 

*  Robinet  v.  Ship  Exeter,  2  Rob.  Adm.  R.  261. 
®  Ante,  Part  II,  ch.  4,  p.  145. 


PRINCIPLES  OF  FORFEITURE.  307 

obedience  of  orders  must,  in  a  single  case,  be  of  a  high 
and  aggravating  character,  involving  a  very  gross  breach 
of  the  contract,  or,  if  habitual,  must  produce  a  general 
diminution  of  duty,  to  carry  with  it  a  forfeiture  of  all 
wa^es.^ 

A  third  principle  is  that  forfeitures,  in  cases  of  se- 
rious oflences,  are  retrospective  in  their  operation,  in- 
volving only  the  wages  antecedently  earned.  Thus,  in 
the  case  of  The  Mentor,  where  the  seamen  had  been 
guilt  V  of  an  endeavor  to  commit  a  revolt,  on  the  home- 
ward voyage,  and  after  the  occurrence,  the  master  put 
into  St.  Helena,  for  the  purpose  of  procuring  another 
crew,  but  some  of  the  original  crew  remained  on  board, 
and  performed  their  duty  faithfully  until  the  ship  arrived 
home  ;  in  answer  to  the  seamen's  action  for  w^ages,  an 
attempt  was  made  to  carry  forward  the  forfeiture  to  the 
time  of  the  ship's  arrival  at  St.  Helena ;  but  the  court 
refused  to  attach  the  forfeiture  to  any  wages  except  those 
earned  antecedently  to  the  affray.^ 

In  this  case,  the  court  settled  some  principles  in  rela- 
tion to  forfeited  wages,  of  a  good  deal  of  practical  im- 
portance. The  entire  w^ages  up  to  a  certain  period  being 
declared  forfeited,  the  question  arose  upon  what  portion 

'  Ante,  Part  II,  ch.  4,  p.  147.  The  Ship  Mentor,  4  Mason's  R.  93.  In 
this  case,  ]\Ir.  Justice  Story  said,  "  I  should  be  sorry  to  lay  it  down  as  a 
settled  rule,  that  even  the  commission  of  the  ofience  of  endeavoring  to 
make  a  revolt,  punishable  as  it  is,  by  fine  and  imprisonment  under  our 
laws,  is,  in  all  cases,  to  be  visited  with  a  total  forfeiture  of  wages.  Cases 
may  easily  be  conceived,  where  the  seamen  have,  in  a  legal  sense,  com- 
mitted the  offence,  and  yet  under  such  circumstances  of  gross  provocation 
and  misconduct  on  the  part  of  the  master,  as  to  form  a  very  strong  excuse, 
addressing  itself  to  the  conscience  and  mercy  of  the  Court." 

•  4  Mason's  R.  95.  See  also  Dixon  v.  The  Cyrus,  2  Pelers's  Adm.  R. 
412. 


308  rRliNClPLES  OF  FORFi:rniRE  — CONDON ATIOM. 

of  the  time  the  advance  wages,  other  advances  for  necessa- 
iit>s  nuuli^  durinii'  the  vojaj^e,  and  hos])ilal  money,  were  to 
be  chariied.  /7/-.s7,  as  to  the  advance  wages,  it  was  held 
that  \\\v\  were  absohitely  due  to  tlie  seamen,  as  part  of 
tlie  consideration  of  their  contract  to  go  on  the  voyage, 
and  were  not  atrected  by  any  siibse(|uent  occurrences. 
Second,  tliat  the  money  advanced  for  clothes  and  other 
necessaries  during  the  voyage,  and  the  premium  de- 
manded on  it,  were  a  charge  which  a  Court  of  Admiralty 
would  watch  with  solicitude,  and  allow  in  its  discretion, 
according  as  it  appeared  to  be  just  and  reasonable  ;  and 
as  it  was  so,  in  this  instance,  it  was  allowed  as  a  charge 
against  the  seamen,  to  be  deducted  from  the  unforfeited 
wages  pronounced  due  from  the  owner.  Third,  that  the 
hospital  money  required  by  the  act  of  July  16,  1798,  eh. 
94,  of  twenty  cents  per  month,  which  the  master  was  au- 
thorized to  retain  out  of  the  wages  of  the  seamen,  was  to 
be  considered  as  a  monthly  deduction,  to  be  apportioned 
upon  the  wages  of  the  whole  voyage,  and  not  to  be 
borne  as  a  charge  upon  the  unforfeited  wages  exclu- 
sively.^ 

Finally,  the  principle  of  condonation,  by  which  the 
mariner  is  reinstated  in  all  his  rights,  will  cure  a  total  or 
partial  forfeiture  of  wages,  in  case  of  a  subsequent  faith- 
ful performance  of  duty.  The  master,  as  the  agent  of 
the  ship-owner,  has  the  necessary  power  to  grant  such 
pardon  as  will  operate  to  restore  the  right  to  wages ;  and 
it  is  in  general  the  riglit  of  the  seaman  to  be  reinstated, 
if  he  tender  his  amends  in  season,  and  before  another 
person  has  been  employed  in  his  stead.     The  laws  of 

•   The  Mentor,  4  Mason's  R.  102,  103,  104. 


CONDONATION.  309 

Oleron  and  those  of  Wisbuy  gave  the  mariner  a  right  to 
offer  satisfaction,  in  the  presence  of  the  crew,  and  if  not 
then  received  again  by  the  master,  to  follow  the  ship 
home  and  demand  his  wages. ^  In  our  law,  the  same 
general  right  seems  to  be  recognised,  subject  only  to  the 
exception  that  if  the  mariner's  conduct  has  been  so  fla- 
grantly wrong  as  to  justify  his  discharge,  and  if  another 
person  has  been,  in  his  absence,  hired  in  his  place,  then 
the  master  will  not  be  bound  to  receive  him.^  The  fact 
of  his  being  received  again,  or  retained  on  board,  in  the 
ordinary  performance  of  his  duty,  will  in  general  be  pre- 
sumptive evidence  of  a  full  pardon.^  But  this  presump- 
tion may  be  rebutted.  If  the  seamen  are  retained  be- 
cause their  places  cannot  be  supplied,  then  the  act  of 
retaining  them  may  not  possess  such  significancy  as 
would  belong  to  it  under  other  circumstances.* 

In  some  cases,  where  the  offence  is  not  of  an  aggra- 
vated character,  and  punishment  has  been  administered 
at  the  time,  no  forfeiture  of  wages  will  be  superadded.^ 

'  Jugemens  D^  Oleron,  art.  14.  Pardessus,  tome  i,  p.  333.  Droit  Mar.  de 
Wishinj,  art.  23.     Ibid.  p.  481. 

'  Cloutman  v.  Tiinison,  1  Sumner's  R.  373.  Whiton  v.  The  Commerce, 
1  Peters's  Adm.  R.  160. 

•  Cloutman  v.  Tunison,  supra.  The  Test,  3  Hagg.  Adm.  R.  307,  315. 
Thorne  v.  White,  1  Pelers's  Adm.  R.  168.  Blaek  v.  The  Louisiana,  Ibid. 
268.  Relfv.  The  Maria,  Ibid.  186.  Dixon  v.  The  Cyrus,  Ibid.  407.  Buck 
y.  Lane,  12  Serg.  and  R.  266.  Miller  v.  Brant,  2  Campb.  R.  590.  Beale 
V.  Thompson,  4  East's  R.  546,  565.  See  ante.  Part  I,  ch.  3,  p.  53,  note  2,  for 
some  observations  respecting  a  clause  in  the  Boston  shipping  articles,  re- 
stricting the  clTcct  of  a  pardon. 

♦  The  Mentor,  4  Mason's  R.  96. 

»  The  Ealinfr  Grove,  2  Hagg.  Adm.  R.  15.  Bray  v.  The  Atalanta, 
Bee's  R.  48.     Luscomb  v.  Prtnce,  12  Mass.  R.  576. 


PART  FIFTH 


OF  THE  REMEDY  OF  MARINERS  FOR 
BREACHES  OF  THEIR  CONTRACT. 


CHAPTER  I. 

OF    THE    REMEDY    OF    MARINERS    FOR    THEIR    WAGES. 

We  have  seen,  in  a  former  part  of  this  Treatise,  the 
form  and  manner  of  hiring  seamen,  and  the  parties  be- 
tween whom  the  contract  takes  place.  It  has  been 
stated,  that  liie  jiarties  to  the  contract  are  three  ;  the 
master,  the  owner  and  the  seamen  ;  and  that  the  hiring 
is  ordinarily  transacted  by  the  master,  as  the  owner's 
agent. ^  It  is  now  to  be  ascertained,  what  remedies  exist 
for  the  mariner,  for  his  wages. 

First  in  order,  then,  as  the  most  effectual  security,  is 
that,  u])on  the  faith  of  which,  hy  the  universal  maritime 
law,  the  contract  is  always  presumed  to  be  made  —  the 
lien  upon  the  vessel  itself.  The  Consolato  affnms  the 
existence  of  this  lien  witli  great  emphasis.  It  directs 
the  master  to  sell  the  vessel,  if  he  has  not  means  to  pay 
the  seamen  ;  "  for  the  seamen  ought  to  be  paid,"  it  de- 
clares, "  before  every  one  tise,  even  tlioit<rh  tfirrr  rrmains 
but  a  siiiirlc  nail  for  llir  payment  ;"  and  it  adds  that 
they  are  hired  upon  tlic  faith  and  security  of  this  liyj)o- 
thecation."^  It  elsewhere  gives  a  precedence;  to  the 
claims  of  seamen  over  all   the  other  debts  of  the  ship.^ 

'  Ante,  Tart  I,  ch.  2,  p.  15  —  19, 

•  Consolato  del  Marc,  art.  93,  [138].     Pardcssus,  tome  ii,  p.  129. 
»  Ibid.  art.  13,  18,  94,  113,  1 18,  182,  [58,  63,  139,  158,  193,  227.]     Ihid. 
tome  ii,  p.  6H,  71,  129,  142,  1G4,  205. 

40 


314  MAUIM'.R'S  IJliN   OiN  Till:  VESSEL. 

The  French  Ord'mnnco  of  1681  specially  alTects  the  ves- 
sel with  the  same  lien,  and  gives  the  same  privilege;' 
both  of  wliich  are  reenacted  in  the  Code  de  Commerce 
\\\\\\  sligiit  variations.'^  Indeed,  the  imiversal  maritime 
law  of  Europe,  Continental  and  British,  gives  this  real 
security  u|)on  the  ship  itself,  to  the  mariner,  for  his 
wages,^  and  it  is  equally  recognised  and  enforced  in  this 
country/  The  grounds  upon  which  the  security  and 
precedence  rest  are,  that  the  mariner,  in  contracting  with 
the  master,  is  presumed  to  engage  on  the  credit  of  the 
ship  ;  that  he  is  constantly  in  danger  of  losing  his  wages 
by  shipwreck;  that  it  stimulates  his  exertions  to  save  as 
much  as  possible  in  the  hour  of  danger,  to  give  him  a 
preferred  right  of  payment  out  of  it  ;-and  that  finally,  by 
his  exertions  in  bringing  the  remnants  of  the  vessel,  or 
the  vessel  itself  into  port,  he  has  enabled  others  to  be 
paid,  who  have  claims  on  it  like  his  own.^ 


'  UOrd.  de  la  Marine,  liv.  3,  tit.  4,  art.  19.     Liv.  1,  tit.  14,  art.  16. 

*  Code  de  Commerce,  art.  271,  191.  In  the  French  law  the  master's 
wages  are  also  a  lien  on  the  ship.     Ibid. 

^  Cleirac,  p.  8.  Targa,  p.  303.  Valin,  Comm.  tome  i,  pp.  362,751. 
Emerigon,  tome  i,  p.  493  ;  tome  ii,  pp.  229,  5G9.  Jacobsen's  Sea  Laws,  by 
Frick,  book  2,  ch.  2,  p.  151.  Abbot  on  Shipping,  part  4,  ch.  4,  sec.  8. 
The  Favorite,  2  Dods.  Adm.  R.222.     The  Sidney  Cove,  2  Ibid.  1. 

*  Farrel  v.  M'Clea,  1  Dall.  R.  392.  Brown  v.  Lull,  2  Sumner's  R.  443. 
The  Mary,  1  Paine's  R.  180.  Sheppard  v.  Taylor,  5  Peters's  S.  C.  R.  675, 
and  numerous  cases  in  the  notes,  infra.  The  lien  is  also  recognised  by 
our  Statute,  Act  U.  S.  20  July,  1790,  ch.  56,  sec.  6;  and  is  given  to  fish- 
ermen in  the  bank  and  cod  fisheries ;  Act  U.  S.  19  June,  1813,  ch.  2.  On 
some  of  the  western  waters,  there  is  a  lien  given  by  state  legislation  to  the 
officers  and  crews  of  steamboats,  and  a  proceeding  m  rem. 

'  Jacobsen's  Sea  Laws,  by  Frick,  book  2,  ch.  2,  p.  151.  Valin, 
Comm.  tome  i,  pp.  362,  363.  1  Sider.  179.  11  Johns.  R.  280.  The  Nep- 
tune, 1  Hagg.  Adm.  R.  227. 


NATURE  OF  A  MARITIME  LIEN.  315 

But  the  voyage  must  be  legal,  to  give  a  lien  on  the 
vessel  for  wages.  If  it  be  illegal,  and  such  illegality  is 
known  to  the  mariner,  he  cannot  assert  a  claim  upon  the 
vessel.^  But  where  the  mariners  are  innocent  of  all 
knowledge  of,  or  participation  in  the  illegality  of  the 
voyage,  their  claim  will  be  preferred  to  the  claim  of  for- 
feiture  on  the  part  of  the  government." 

The  nature  of  this  lien,  or  claim  upon  the  vessel  m  rem 
is  totally  distinct  from  those  rights  which  are  more  appro- 
priately called  liens,  at  the  common  law.  Strictly  speaking, 
a  lien  is  a  right  to  detain  a  thing  put  into  a  party's  pos- 
session, until  some  demand  of  that  party  is  satisfied.^  The 
word  itself,  however,  has  been  used  indiscriminately,  in  our 
law  books,  to  signify  as  well  the  strict  possessory  lien  of 
the  common  law,  as  those  other  claims  with  which  a 
particular  thing  may  be  affected,  by  a  privileged  debt, 
which  rc(juire  and  involve  no  possession,  but  attach  to 
the  thing  wherever  it  is  found.  To  define  clearly,  there- 
fore, the  nature  of  the  mariner's  claim  upon  the  vessel,  it 
would  s(H  Ml  to  be  necessary  to  discard  this  term  from 
use  ;  though  it  has  been  so  extensively  employed  in  ju- 
ridical discussions,  that  it  cannot  be  wholly  dispensed 
with." 

Domat,  treating  of  the  privileges  of  creditors,  divides 
them  into  three  classes,  in  one  of  which  he  ])laces  "  those 

'  The  St.  Jago  de  Cula,  9  Whealon's  R.  409.  The  Langdan  Chceves, 
2  Mason's  R.  58.  The  Vanguard,  6  Rob.  Adin.  R.  207.  The  Lcander, 
Edw.  Adm.  R.  35.     The  neujanun  Fran/Mn,  6  Rob.  Adm.  R.  350. 

»  The  St.  Jago  de  Cuba,  and  The  Vanguard,  supra.  Sec  also  Sheppard 
V.  Ta>jlor,  5  Pcters's  S.  C.  R.  675,  709. 

'  Story  on  Agency,  sec.  352,  and  tbc  auiborities  cited. 

*  See  a  discussion  of  the  nature  of  maritime  liens,  in  the  opinion  of  the 
Court  in  the  case  of  The  Nestor,  1  Sumner's  R.  73. 


olG  NATUKK  0('    A  MAKITIMK   LIKN. 

whose  debt  lias  some  ])rivllei:;e  which  dist'mj^uislies  their 
coiurnioM  from  that  of  otiiers,  and  gives  them  a  j)reference 
over  those  n  hose  (h'ht  may  be  j)ri()r  in  point  of  time."^ 
"  Privih'ges,-'  h(;  savs,  "are  of  two  kinds:  one,  those 
which  give  a  preference  upon  all  goods,  vvithont  special 
alVectation  of  any  one  thing;  as,  for  example,  the  privi- 
leire  of  expenses  of  justice,  and  of  funeral  charges  :  the 
other,  those  which  have  only  a  .special  affectation  of  cer- 
tain thinfis,  and  not  of  other  things."^  "  The  privilege 
of  a  creditor  is  the  distinguishing  right  which  the  quality 
of  liis  debt  gives  him,  which  causes  it  to  be  preferred  to 
other  creditors,  and  even  to  express  hypothecations,  though 
anterior.-'^ 

The  kind  of  claim  here  spoken  of  is  precisely  what 
the  maritime  law  intends,  in  the  claim  of  seamen  upon 
the  vessel,  as  in  the  case  of  other  maritime  liens. ^  It 
embraces  two  elements  :  first,  it  is  a  special  charge  on 
the  ship  itself;  a  right  to  be  paid  out  of  the  thing: 
second,  it  is  a  privileged  charge,  entitled  to  be  paid,  by 
priority,  before  any  other  special  charge  upon  the  same 
thing.     These  characteristics  are  fully  recognised  in  the 

'  Domat,  liv.  3,  tit.  1,  sec.  5.  (Euvres  Complete,  tome  ii,  p.  35,  Paris, 
1829. 

^  Ibid.  It  is  difficult  to  render,  by  any  corresponding  English  terms,  bet- 
ter than  special  affectation,  the  affectation  particulierc  sur  line  chose,  of  a 
writer  whose  native  tongue  is  so  exact,  and  so  eminently  adapted  to  scien- 
tific precision.  The  phrase,  in  English,  sounds  like  special  affectation,  in 
good  sooil).  Tiie  u^e,  however,  of  the  verb  "to  affect,"  in  the  sense  of  to 
taint,  or  loucli  wiiii,  to  convict  of,  is  by  license  conceded  to  the  profession. 
"A  merely  juridical  phrase,"  says  Dr.  Johnson,  of  the  eighth  and  last 
meaning  which  he  assigns  to  the  word. 

3  Ibid. 

*  "  Every  privilege,"  says  Emerigon,  "carries  with  it  a  tacit  hypotheca- 
tion."    Contracts  a  la  Grosse,  ch.  12,  sec.  2. 


MARINER'S  LIEJNf  DN  THE  VESSEL.  317 

decisions  in  our  own  and  the  English  law.  Thus,  from 
the  principle  that  the  claim  is  a  charge  on  the  thing  it- 
self, and  not  merely  a  right  to  detain  the  thing,  flows  the 
necessary  consequence,  that  it  does  not  include  or  require 
possession  of  the  thing,  in  order  to  be  enforced  or  kept 
alive  ;  but  it  is  a  right  to  proceed  against  the  thing, 
wherever  it  is  found.'  So  too,  it  is  equally  a  conse- 
quence of  the  same  principle,  that  the  lien,  attaching 
orisrinallv  to  the  vessel,  attaches  to  w^hatever  is  substi- 
tuted  for  it.  If  the  ship  is  sold,  the  lien  still  attaches  to 
it,  or  to  its  proceeds,  in  the  hands  of  the  owner,  or  of 
his  assignee,  or  when  deposited  in  court ;  and  the  seaman 
may  j)roceed  against  such  proceeds,  or  against  the  ship 
itself,  according  as  either  is  under  the  process  of  the 
court.-  If  tlie  ship  is  seized  and  condemned  in  a  foreign 
country,  and  restitution  is  made  in  money,  the  lien  re- 
attaches upon  the  fund,  as  representing  the  ship,  whether 
received  in  the  whole  or  in  part  of  the  value,  or  of  the 
sum  awarded,  because  it  attaches  equally  upon  a  part  of 
the  shi}),  as  well  as  the  whole.^ 

'  Sheppard  v.  Tmjior,  5  Peters's  S.  C.  R.  675.  Broicn  v.  Lull,  2  Sum- 
ner's R.  443.  The  Nestor,  1  Ibid.  73.  The  Mary,  1  Paine's  R.  180.  The 
Balavia,  2  Dods.  Adin.  R.  500.  The  Lord  Hobart,  2  Ibid.  100.  The  Ma- 
donna D'Idra,  1  Ibid.  37.  The  Sidney  Cove,  2  Ibid.  11.  The  Neptune,  1 
Hagg.  Adm.  R.  227.     Goodridirc  v.  Lord,  10  Mass.  R.  483. 

'  Shrppard  V.  Taylor,  5  Pclers's  S.  C.  R.  G75.  Bromi  v.  Lull,  2  Sum- 
ner's R.  443.  The  Dunvegan  Castle,  3  Hagg.  Adm.  R.  329.  The  Prince 
George,  3  Hagg.  Adm.  R.  376.  And  tl»e  lien  exists  in  ail  cases  as  much 
against  the  government,  becoming  proprietors  by  way  of  purcbase,  or  for- 
feiture, or  olherwisc,  as  it  docs  against  tlie  vessel  in  the  possession  of  a 
private  person.  So  too,  of  bottomry  bonds.  United  States  v.  Wilder,  3 
Sumner's  R.  308,  314.  The  St.  Jago  de  Cuba,  9  Whealon's  R.  409.  The 
Vanguard,  6  Rob.  Adm.  R.  207. 

»  Ibid.  The  Neptune,  1  Hagg.  Adm.  R.  227.  Pilmnn  v.  Hooper,  3  Sum- 
ner's R.  50,  286. 


318  MARINER'S  LIEN  — HOW  LOST. 

The  mariner's  I'umi  is  a  priviloij;ed  claim,  f  lence  it  has 
jiircedcnce  of  all  tlie  oilier  debts  of  the  vessel,  and  is 
even  entitled  to  be  paid  before  the  debts  for  which  an 
express  hvi)otheeatioii  of  the  ship  may  have  been  given, 
whether  the  vessel  itself  be  proceeded  against,  or  a  fund 
which  represents  it.^ 

The  modes  in  which  the  seamen's  lien  may  be  lost  or 
extinguished,  may  be  examined  under  three  principal 
heads.  First,  by  the  destruction  of  the  thing.  Second, 
by  payment,  or  what  is  equivalent  thereto.  Third,  by 
prescription,  or  laches,  or  a  renunciation  of  his  rights  by 
the  mariner.- 

First,  the  lien  is  of  course  lost  by  the  destruction  of 
the  vessel.  But  it  must  be  a  total  loss  and  destruction 
of  every  part  of  it.  It  has  been  seen,  in  a  previous  dis- 
cussion of  the  case  of  shipwreck,  that  the  seamen  are 
entitled  to  be  ])aid  out  of  any  fragments  of  the  wreck 
which  they  may  save  ;  and  although  there  has  been  some 
doubt  whether  a  new  lien,  in  the  nature  of  a  lien  for  sal- 
vage, did  not  arise,  in  such  cases,  the  weight  of  authority 
is  in  favor  of  the  doctrine,  that  the  contract  is  not  dis- 
solved, and  hence  that  the  original  lien  for  wages  adheres 
as  well  to  parts  of  the  ship  as  to  the  whole.^  So  too,  in 
the  cases  of  restitution  of  the  value  of  the  ship,  after  a 
seizure  and  condemnation,  the  whole  wages  due  attach 


'  The  Madonna  D'Idra,  1  Dods.  Adm.  R.  37.  The  Sydnexj  Cove,  2  Ibid.  1. 
The  Kammerheve  Rosenkran/z,  1  Hagg.  Adm.  R.  62.  The  Ship  Virgin, 
8  Peters's  S.  C.  R.  538.  The  Paragon,  Ware's  R.  322,  330.  3  Kent's 
Com.  196, 197. 

*  See  Pothier,  Traiti  de  VHypolhkque,  ch.  3,  as  to  the  manner  in  which 
an  hypothecary  interest  may  be  extinguished. 

»  Ante,  Part  IV,  ch.  2,  p.  284,  et  seq. 


MARINER'S  LIEN  — HOW  LOST.  319 

as  well  to  the  first  instalment  of  the  indemnity  received 
by  the  owner,  as  if  the  whole  had  been  received.^ 

In  the  second  place,  the  lien  is  lost  by  payment  of  the 
claim,  or  what  is  equivalent  thereto.  But  it  must  be  a 
payment  in  full,  to  extinguish  the  lien  :  payment  in  part 
can  only  extinguish  the  lien  pro  tcmto,  which  remains 
good  for  the  residue  over  the  whole  of  the  thing  to  which 
the  lien  originally  attached.-  What  will  be  considered 
as  equivalent  to  payment  must  depend  on  particular  facts. 
It  is  a  general  principle  of  law,  that  the  taking  of  a  ne- 
gotiable security  extinguishes  a  simple  contract  debt  ; 
and  in  a  case  where  a  seaman,  discharged  at  Calcutta, 
and  having  had  his  wages  offered  to  him  in  money,  pre- 
ferred to  take  a  bill  of  exchange  on  the  owners,  as  an 
accommodation  to  himself,  Lord  Stowell  held  that  he 
could  not  sue  against  the  ship,  the  owners  having  become 
insolvent,  but  that  having  made  his  election,  he  must 
stand  by  the  risk.^  This  is  a  rather  rigorous  application 
of  legal  principles  to  a  right  which  the  maritime  law  is 
disposed  to  favor.  In  another  case,  where  there  was  no 
offer  of  monev,  but  wlien  the  men  callcnl  on  the  master 
for  their  pay,  he  drew  an  order  on  the  owner,  not  nego- 
tiable, the  learned  .ludge  of  the  District  Court  for  Maine 
li(;ld  that  the  taking;  of  the  order  was  not  to  be  considered 
as  a  waiver  of  their  lien  on  the  vessel,  or  of  their  right  to 
proceed  against  the  master.'' 

•  Broun  V.  TmII,  2  Sumner's  R.  443,  Pitman  v.  Iloopo.r,  3  Ibid.  50,  2S6. 
The  same  is  true  of  portions  of  the  freight  received.     Ibid. 

'  Polhicr,  Trmli  dr.  L' Ili/p(ilhe(/>ie,  cl».  3,  sec.  4. 
'   77.r  Willuim  Money,  2  Hagg.  Adrn.  R.  136. 

*  The  Eastern  Star,  Ware's  R.  185.  As  to  tlic  extinguishment  of  the 
original  dt-ht,  hy  taking  a  negotiable  security,  see  Cliilty  on  Contracts,  fourth 
Amer.  edit.  (1839,)  p.  594,  and  notes.     The  modern  doctrino,  in  respect  to 


320  MARINER'S   LIEN  — HOW  LOST. 

Ill  a  niorc^  recent  case  in  Eniilaiul,  the  seamen  had 
prorroded  in  the  Admiralty  against  the  freight  in  the 
liands  of  the  ship's  agent,  tlie  sln()  itself  liaving  gone  to 
sea.  The  agent  admitted  that  he  liad  received  the 
freiiilit,  but  liad  j)aid  it  away ;  and  in  order  to  avoid  fur- 
ther costs,  and  in  tlie  expectation  that  the  ship  would 
soon  return,  consigned  to  him,  he  gave  his  bill  at  three 
months'  date  for  fifty-five  pounds,  del)t  and  costs;  where- 
upon the  matter  was  alleged  to  be  under  treaty.'  Tiie 
ship  arrived  in  England,  consigned  to  other  parties,  and 
not  to  the  former  agent.  The  consignees  admitted  the 
claim  of  the  seamen  against  the  ship,  but  refused  to  pay 
the  costs.  Upon  this,  an  action  was  entered  against  the 
ship  ;  and,  on  the  part  of  the  owners,  thirty-eight  pounds 
and  fourteen  shillings  —  the  amount  of  wages  and  allow- 
ances claimed  —  were  paid  into  the  registry,  with  an  un- 
dertaking to  pay  such  costs  as  might  be  decreed  against 
them.  The  facts  were  then  set  forth  on  behalf  of  the 
seamen,  in  an  act  on  petition  :  and  in  reply,  it  was  ad- 
mitted that  the  amount  of  the  demand,  for  which  the 
former  action  was  brought  against  the  freight,  and  for 
which  the  second  action  had  been  entered  against  the 
ship,  was  })aid  into  the  registry,  as  the  ship  was  liable 
for  the  same,  although  she  did  not  continue  the  property 
of  the  persons  to  whom  she  belonged  when  the  d(d)t  to 
the  said  seamen  was  contracted,  or  when  the  freight  was 


liens,  is,  tliat  an  express  contract  for  a  specific  sum  is  not  of  itself  a  waiver 
of  the  lien,  but  that  to  produce  that  effect,  the  contract  must  contain  some 
stipulations  inconsistent  with  the  continuance  of  such  lien,  or  from  which 
a  waiver  may  fairly  be  inferred.  Peijroux  tl  al.  v.  Howard,  7  Peters's 
S.  C.  R.  324. 
'  That  is,  so  alleged  in  the  proceedings,  for  delay. 


MARINER'S   LIEN— HOW  LOST.  321 

earned,  or  the  former  action  pending;  but  it  was  denied 
that  the  ship  was  liable  for  the  costs  of  such  action,  in- 
asmuch as  it  should  have  been  proceeded  with,  or  the 
former  agent  sued  upon  his  bill.  An  affidavit,  with  a 
letter,  dated  before  the  action  was  entered  against  the 
ship,  from  the  former  agent  to  the  Sardinian  Consul,  [who 
intervened  for  the  seamen,  they  being  Italians,]  w^as  / 
brought  in,  giving  notice  to  the  consul  of  the  ship  having 
arrived  in  England,  and  that  having  accei)tcd  the  bill, 
merelj  as  guarantee,  he  w'as  only  liable  in  the  event  of  the 
men  not  recovering  against  the  ship.  There  was  no  proof 
of  the  change  of  ownership.  Sir  John  Nicholl.  "  It  is 
said  that  the  agent  admits  that  he  had  possession  of  the 
freight,  but  it  was  out  of  his  possession  before  the  com- 
mencement of  this  suit ;  and  he  only  undertook  to  pay 
the  demand  in  case  the  ship  were  consigned  to  liim.  It 
is  also  said  that  this  is  a  new  suit;  but  I  do  not  so  con- 
sider it ;  it  is  only  a  continuance  of  proceedings  for  the 
same  object  —  the  recovery  of  wages.  The  ship  is  liable 
for  wages  and  costs.  The  costs  are  as  much  due  as  the 
sors  principalis.  If  the  ship  has  chang(!d  her  owners, 
this  payment  may  be  hard  upon  those  who  are  the  pre- 
sent owners,  but  tiiey  must  seek  their  remedy  against  the 
former  owners.'" 

Ill  the  third  place,  the  lien  may  be  lost  by  prescription, 
or  laches,  or  a  renunciation  of  his  rights  by  the  mariner. 

In  France,  the  ruh:  is  that  the  wages  of  the  seamen 
for  the  last  voyage  are  a  charge  on  the  ship,  and  after  a 
voluntary  sale  and  a  voyaire  in  tlu;  name  and  at  the  risk 
of  the  new  owner,  their  lien  is  lost.^     No  such  j)rescrip- 

'    The  Marfraret,  3  Ilnf??.  Adm.  R.  233. 

'  VOrd.  dc  la  Marine,  liv.  1,  tit.  14,  art.  10. 

41 


322  i\iauim:k's  lien  — how  lost. 

tion  has  boon  ndoptod  in  tliis  country,  or  in  England. 
Soanion  may  pursue  tlicnr  lien  after  the  vessel  has  passed 
into  other  hands,  and  after  she  may  have  made  one  or 
more  voya«;;es.'  Nor  does  any  particular  lapse  of  time 
defeat  it,  ]>ro\  idod  that  neither  the  vessel,  nor  a  fund  that 
may  be  substituted  for  it,  is  within  their  reach ;  as  in 
cases  of  seizure  by  a  foreign  government,  where  the  lien, 
as  we  have  seen,  reattaches,  upon  restitution.^  The  limi- 
tation followed  by  our  admiralty  courts  is  that  involved 
in  the  maxim  "  vigilantibus,  non  donnientibiis,  subvenmnt 
leges.'^^  If  a  mariner,  being  on  the  spot,  should  suffer  a 
vessel  to  be  sold  to  a  person  ignorant  of  his  claim,  with- 
out asserting  it,  or  giving  notice  of  it,  when  he  might 
have  done  so  ;^  u  fortiori,,  if,  being  on  the  spot,  he  suf- 
fers a  judicial  sale  to  take  place,  under  a  decree  of  a 
court  of  Admiralty,  at  the  suit  of  others  of  the  crew,  and 
gives  no  notice  and  does  not  apply  to  be  admitted  against 
the  proceeds;^  in  these  and  the  like  cases  he  would  lose 
his  lien. 

Still,  there  is  no  fixed  rule,  other  than  what  in  equity 
ought  to  be  drawn  from  the  circumstances  of  each  case. 
Thus,  where  mariners  shipped  with  a  cargo  on  a  voyage 
from  New  York  to  New  Orleans  and  back,  and  the  ves- 
sel remained  at  the  latter  port  more  than  a  year  waiting 
for  freight,  and  not  obtaining  any,  the  master  discharged 
the  seamen,  whom  he  persuaded  to  return  with  him  in 


'  The  Mary,  1  Paine's  R.  180.  The  Batavia,  2  Dods.  Adm.  R.  500.  The 
Margaret,  3  Hagg.  Adm.  R.  238.  The  Eastern  Star,  Ware's  R.  185.  3 
Kent's  Com.  197. 

^  Ante,  p.  278,  279,  280. 

'  The  Rising  Sun,  Ware's  R.  85. 

*  Trump  V.  Ship  Thomas,  Bee's  R.  86. 


MARINER'S  LIEN  ON  THE  FREIGHT.  323 

another  vessel  to  New  York,  to  get  their  wages  ;  and 
afterwards,  while  the  vessel  was  at  New  Orleans,  she 
was  sold  and  went  a  voyage  to  Liverpool  and  thence  to 
New  York,  where  the  former  crew  lihelled  her ;  the  Cir- 
cuit Court  for  tlie  District  of  New  York  held  that  their 
forbearance  to  libel  her  at  New  Orleans  did  not  amount 
to  a  waiver  of  their  lien  against  a  subsequent  bona  fide 
purchaser.  They  were  discharged  and  persuaded  to  re- 
turn to  New  York,  before  the  vessel  was  sold  ;  as  stran- 
gers, they  might  have  found  difficulty  in  getting  bail  for 
the  proceedings,  at  New  Orleans ;  and  they  might  have 
had  other  motives  of  liberality,  in  not  libelling  the  vessel 
there,  as  this  might  have  had  the  effect  to  break  up  the 
residue  of  her  voyage,  or  expose  her  to  be  sold  at  a  great 
sacrifice.^ 

We  have  seen  that  in  admiralty  proceedings  there  is 
no  express  limitation  of  time,  within  which  seamen  must 
pursue  their  claims.^ 

Another  security  for  the  payment  of  wages  is  a  direct 
hypothecary  interest  in  the  freight  earned  by  the  vessel, 
for  the  amount  of  the  wages  due.  The  general  maritime 
law  clearly  recognises  such  a  lien.  The  Consolatu  de- 
clares that  the  master  is  bound  to  pny  the  seamen  with 
the  freight  which  he  receives,  and  if  this  is  not  sufficient, 
that  he  ouglit  to  borrow;  that  In;  should  pay  them  at  the 
place  where  he  receives  the  freight,  and  with  the  same 
kind  of  money  which  he  receives  from  the  merchants; 
and  that  when  the  mercliandise  is  abandoned  to  the  mas- 
ter for  the  freight,  whether  it  is  worth  the  freight,  or  not, 


'   The  Mary,  1  Paine's  R.  180,  187. 
*  Ante,  Part  IV,  ch.  1,  p.  268,  269. 


324  MAUlNr.R'S  LIF.N  ON  TIIR  FRF.ICIIT. 

the  scanuMi  ou;i;Iit  to  be  |Kti(l  their  wagos,  thon<ih  it  should 
be  necessary  to  sell  the  shi]).'  The  French  ordinance  of 
1G81,  and  the  new  code,  specially  affect  the  freij^ht  as 
well  as  the  vessel,  with  the  wages  ;^  and  aithongh  the 
seaman's  j)rivilege  against  the  vessel  is,  in  the  French 
law,  j)laced  in  the  sixth  rank  in  the  arrangement  of  the 
privileges  of  difl'erent  creditors,  it  is  not  so  with  regard  to 
the  freight,  against  which  his  privilege  is  first,  because 
he  has  created  the  freight  for  the  owner  by  his  labor .^ 
The  laws  of  Spain  and  Portugal  also  make  the  freight 
specially  answerable  for  wages."*  Foreign  text  writers 
affirm  the  same  privilege.^  By  our  courts,  the  lien  on 
the  ship  and  that  on  the  freight  are  treated  as  of  the 
same  nature  and  ordinarily  of  the  same  extent  f  and  it 
seems  that  they  would  be  so  regarded  in  England.' 

The  lien  on  the  freight  can  be  enforced  by  seizing  it 
in  the  hands  of  the  master,  or  in  the  hands  of  the  mer- 
chant before  it  is  paid  over  to  the  master.^  If  this  pre- 
caution is  omitted,  and  the  merchant  has  paid  over  the 
freight  to  the  master,  the  French  writers  are  of  opinion 


'  Conxolato  del  Mare,  ch.  93,  [138,]  94,  [139,]  SG,  [131.]  Pardessus,  tome 
ii,  p.  129,  130,  125. 

*  L'Ord.  de  la  Afannc,  liv.  3,  tit.  4,  art.  19.     Code  de  Commerce,  art.  271. 
'  Sautayra,  Code  de  Commerce,  expliqui,  p.  176,  Paris,  1836. 

*  Jacobsen's  Sea  Laws,  book  2,  ch.  2,  p.  150. 

*  Valiii,  Comm.  tome  i,  p.  751.  Emerigon,  tome  ii,  ch.  17,  sec.  11. 
Boulay  Paty,  Cours  de  Droit  Commerce,  tome  ii,  p.  223. 

«  Sheppard  V.  Taylor,  5  Peiers's  S.  C.  R.  675.  Brown  v.  Lull,  2  Sum- 
ner's R.  443.  Pitman  v.  Hooper,  3  Ibid.  50.  Poland  et  al.  v.  The  Freight, 
dfc,  of  The  Spartan,  Ware's  R.  134.     1  Peters's  Adm.  R.  194,  note. 

^   The  Lady  Durham,  3  Hagg.  Adm.  R.  200. 

"  Sautayra,  Code  de  Commerce,  expliqui,  p.  176.  Poland  et  al.  v.  The 
Freight,  dfc,  of  The  Spartan,  Ware's  R.  134.  The  Lady  Durham,  3  Hagg. 
Adm.  R.  200. 


MARINER'S  LIEiN  ON  THE  FREIGHT.  325 

that  the  mariners  cannot  recover  of  the  merchant.^  But 
in  this  they  must  intend  the  case  of  payment  to  the  mas- 
ter A^thout  notice  from  the  seamen  of  their  claim.^ 

If  the  merchant  refuses  or  neglects  to  pay  the  freight, 
the  mariners  may  proceed  against  the  merchandise  for  so 
much  of  the  freight  as  is  due  upon  it.^  Where  the 
ship  and  cargo  belong  to  the  same  person,  it  has  been 
held  in  one  case  that  the  mariners  may  proceed  against 
such  cargo,  for  a  reasonable  freight,  although  it  had 
passed  to  assignees,  on  the  insolvency  of  the  owner,  be- 
fore the  ship  arrived.''  If,  the  owner  of  the  ship  being 
also  owner  of  the  cargo,  both  have  been  seized  and  con- 
demned by  a  foreign  government,  and  afterwards  restitu- 
tion in  value  is  made,  and  freight  is  awarded  as  a  distinct 
item,  the  mariners  may  proceed  against  it  for  wages,  in 
the  hands  of  the  assignees  of  the  insolvent  owner.^  And 
if  the  owner  receives  any  freight,  whether  in  full  or  in 
part  of  what  was  earned,  the  whole  wages  due  attach 
upon  it ;  for  as  the  wages  are  nailed  to  the  last  plank  of 
the  ship,  so  also  they  are  to  the  last  fragment  of  the 
freight.^ 

'  Valin,  Coram,  tome  i,  p.  751.  Sautayra,  ul  supra.  Boucher,  Droit 
Mar.  part  3,  sec.  7. 

*  See  ante.  Part  III,  ch.  4,  and  the  case  of  Ingersoll  v.  Tan  Bokkelin, 
there  cited. 

'  Poland  ct  al.  v.  The  Freight,  Jfc,  of  The  Spartan,  Ware's  R.  134. 
The  Lady  Durham,  3  llagg.  Adm.  R.  200. 

*  Poland  ct  al.  V.  The  Spartan,  supra.  In  The  Lady  Durham,  Sir  John 
NichoU  said,  "A  mariner  has  no  lien  on  llie  cargo,  as  cargo;  his  hen  is 
upon  the  sliip  and  on  the  freight  as  appurtenant  to  the  ship  ;  and  so  far  as 
the  cargo  is  subject  to  freight,  he  may  attach  it  as  security  for  the  freight 
that  may  be  due." 

»  Shrphnd  V.  Taylor,  5  Peiers's  S.  C.  R.  675. 

*  Drown  v.  Lull,  2  Sumner's  R.  443.     Pitman  v.  Hooper,  3  Ibid.  50,  186. 


326  MARINER'S  REMKDY  AGAINST  THE  MASTER. 

Of  the  personal  remedies  for  the  mariner,  wo  have 
now  to  treat  of  the  liabihty  of  the  master  and  the  owner 
of  the  shij). 

The  manner  in  wliieh  seamen  are  ordinarily  hired,  by 
the  master  aetiiii:;  as  the  agent  of  the  ship-owner,  has 
been  stated  in  a  former  ehapter ;  and  it  has  been  seen 
that  he  is  ordinarily  elothed  with  authority  to  make  this 
contract,  subject  to  very  few  restrictions.^  Whenever  he 
hires  a  mariner,  the  master  subjects  himself  to  a  personal 
liability  to  such  mariner,  for  the  wages,  founded  in  the 
contract  of  hiring,  which  he  has  himself  made.^  This 
liability  is  usually  expressly  stated  in  the  shipping  arti- 
cles, which  ordinarily  recite  that  the  master  agrees  with 
and  hires  the  several  other  parties.  There  can  be  no 
question,  therefore,  of  the  master's  personal  liability  to 
the  mariners  whom  he  has  himself  hired.  And  where 
he  has  not  hired  them  himself,  but  they  have  been  hired 
by  the  owner,  and  the  master  afterwards  signs  the  con- 
tract, it  has  been  held  that  the  master  is  liable  to  the 
action  of  the  seamen  for  wages,  for  that  is  a  case  of  con- 
tract.^ So  too,  it  is  said,  upon  great  authority,  that  the 
mere  fact  of  the  contract  being  made  by  the  owner, 
would  not  raise  the  presumption  that  exclusive  credit  was 
given  to  the  owner,  by  the  crew,  as  it  might  in  other 
contracts  respecting  the  vessel ;    because  the  shipping 

And  if  any  freight  is  earned,  whether  received  or  not,  the  mariners  are  en- 
titled to  wages.     Ibid,  andante,  Part  IV,  ch.  2. 

'  Ante,  Part  I,  ch.  2,  p.  15,  et  seq. 

*  Polhier,  Loiiages  Mar.  n.  226,  edit.  Dupin,  tome  iv,  p.  429.  Abbot  on 
Ship,  part  4,  ch.  4,  sec.  10,  p.  485,  Amer.  edit.  1839.  Farrel  v.  MClea,  1 
Dall.  R.  392.  The  Margaret,  3  Hagg.  Adm.  R.  238.  Ante,  Part  III,  ch.  1, 
and  cases  cited. 

'  Mayo  V.  Harding,  6  Mass.  R.  300. 


MAREN'ER'S  REMEDY  AGAINST  THE  MASTER.  327 

articles  and  the  maritime  law  contemplate  a  personal  re- 
sponsibility of  the  master.' 

But  where  the  master  has  neither  originally  hired  the 
mariners,  nor  subsequently  signed  the  shipping  articles, 
does  he  in  any,  and  what  case,  become  personally  liable 
to  the  seamen  who  may  have  performed  the  voyage  un- 
der him  ?  The  Supreme  Court  of  New  York  have  de- 
cided that  a  master  who  was  sent  out  by  the  owners  to 
take  the  place  of  the  original  master  and  bring  the  vessel 
home,  which  had  been  captured,  was  liable  to  the  crew 
only  for  that  portion  of  the  wages  accruing  after  he 
took  the  command.  They  put  it  upon  the  ground  of 
contract ;  and  as  there  was  no  contract  between  the  new 
master  and  the  crew,  with  respect  to  the  outward  voyage, 
and  he  did  not  assume  the  contract  of  the  old  master,  it 
was  held  that  the  voyage  home  was,  under  the  circum- 
stances, altogether  a  new  contract  with  the  crew,  and 
the  only  contract  into  which  the  new  master  had  en- 
tered.^ 

In  this  case,  the  court  said,  "  The  only  case  in  which 
it  can  be  su})posed  that  a  new  or  substituted  master  as- 
sumes the  contract,  is,  A\licn  he  takes  upon  himself  the 
original  voyage."^  We  may  suppose  the  case,  then,  of  a 
substituted  master,  who  comi)h'tes  the  original  voyage,  the 
vessel  earning  freight,  \\  hich  the  new  master  receives,  or 
iiiii:hl  h;i\e  received. 

I  have  stated,  in  the  cha])ter  on  tlie  master's  relation 
lu  [Uc  vessel,  that  his  liabilily  to  the  seamen   is  founded 

'  Story's  Comm.  on  Agency,  sec.  290,  p.  302;  he  cites  2  Emcrig.  Dcs 
Assurances,  ch.  4,  sec.  12,  p.  4<j7.  I  Bell's  Cointn.  sec.  435,  p.  414,  sec.  418, 
p.  308. 

*   \V,/sfiam  V.  liofS'u,  11  Johns.  R.  72. 

'  Ibid.  p.  7:J. 


328  MARINER'S  REMEDY  AGAINST  THE  MASTER. 

in  contract,  express  or  implied.'  If,  tlien,  a  substituted 
master  had  earned  fVciglit,  and  had  actually  received  it, 
or  niii;ht  have  received  it,  to  be  a])])lied  to  the  claims  of 
the  seamen,  would  he  not  be  deemed  to  have  assumed 
the  whole  of  the  original  contract,  so  as  to  be  personally 
liable  for  the  wages  earned  before,  as  well  as  those 
earned  after  his  accession  to  the  office  ?  It  is  certain 
that  the  maritime  law  contemplates  freight  as  the  trust 
fund  for  the  payment  of  wages,  and  some  of  the  older 
authorities  direct  the  master  positively  in  regard  to  the 
payment  of  their  claims  out  of  it.^  If  he  had  actually 
received  the  freight,  and  neglected  their  claims,  he  would 
at  least  be  liable  as  the  holder  of  a  fund  out  of  which 
they  are  entitled  to  be  paid  by  priority.^  Whether  the 
opportunity  to  have  received  it  would  raise  an  implied 
contract  with  the  seamen  for  the  whole  voyage,  is  a 
question  deserving  of  consideration. 

The  remaining  personal  remedy  for  the  mariner  is 
against  the  owner  or  owners  of  the  vessel. 

It  has  been  shown  in  a  former  chapter  that  the  master 
is  uniformly  empowered  by  the  maritime  law  to  contract 
with  the  seamen  for  their  services ;  that  he  hires  them 
as  the  agent  of  the  ship-owner,  as  well  as  on  his  own  ac- 
count ;  and  that  through  such  agency  the  owner  becomes 
personally  liable  to  the  seamen  for  their  wages. ^  It  is 
not  necessary  that  the  owner  should  be  known  to  the 
mariner,  thus  hired,  or  that  his  name  should  appear  as 
owner  in  the  shipping  articles.     If  he  be  the  owner  of 

*  Ante,  Part  III,  ch.  1. 

*  Ante,  p.  323,  324,  and  notes. 
^  Valin,  tome  1,  p.  751. 

*  Ante,  Part  I,  ch.  2,  p.  15,  19. 


MARINER'S  REMEDY  AGAINST  THE  OWNER.  329 

the  vessel,  he  viitually  contracts  with  the  mariner,  tln-ough 
the  agency  of  the  master,  and  is  answerable  for  the  per- 
formance of  his  engagement.^  So  too,  although  the 
statute  regulating  the  fisheries,  requires  the  ship})ing  arti- 
cles to  be  endorsed  or  countersigned  by  the  owner,-  it 
has  been  held  that  the  articles  do  not  determine  conclu- 
sively who  are  the  owners,  nor  with  ^^  hom  the  contract 
is  made  ;  but  that  a  seaman  may  have  his  remedy  for  his 
share  of  the  fish  taken,  against  all  the  owners,  and  he 
may  show  those  whom  he  sues,  to  be  such,  by  other  evi- 
dence than  the  papers  of  the  vessel.^ 

There  is  no  difficulty,  therefore,  in  the  maintenance  of 
the  general  proposition  that  the  owner  is  answerable  for 
the  wages  of  tiie  seamen.  But  the  question,  who  is  to 
be  deemed  owner,  under  all  circumstances,  with  reference 
to  this  contract,  may  present  real  embarrassments,  in 
some  cases. 

One  test,  to  be  applied  to  the  solution  of  this  question, 
would  be,  who  appointed  the  master  and  gave  him,  ex- 
press or  implied,  authority  to  hire  the  seamen?  If  the 
actual  owner  of  the  ship  did  this,  he  remains  personally 
liable  for  the  wages  of  seamen  hired  for  the  voyage,  and 
cannot  divest  himself  of  that  liability  by  a  sale  of  the 
ship  abroad.  Thus,  where  a  ship,  which  had  been  ca))- 
tured  on  the  voyage  homeward,  was  abandoned  to  the 
underwriters,  on  rcccij)!  of  the  news  of  capture;,  and  af- 
terwards, being  released,  i)erformed  the  voyage  and  de- 

'  Abbot  on  Sbipping,  part  4,  ch.  4,  sec.  10,  p.  4S5,  Aincr.  edit.  1829. 
Jirondr.  v.  llavni,  Gilpin's  R.  502.  Wait  v.  (JMs,  4  Pick.  R.  2!)8.  Furrel  v. 
MCha,  1  Dull.  R.  3fJ3.     The  Si.  Johan,  1  Ilagg.  Adm.  R.  334. 

*  Act  U.  S.  19th  June,  1813,  ch.  2,  sec.  1. 

=•  Watt  V.  GMs,  4  Tick.  R.  298. 

42 


330  MARINER'S  REMEDY  AGAINST  TlIK  OWNER. 

livered  her  cargo,  a  seaman  who  had  been  taken  out  by 
the  captors,  but  who  had  returned  liome  as  soon  as  he 
was  set  at  liberty,  was  liekl  entith^d  to  wages  to  the 
time  of  his  return ;  from  the  original  owners  and  not 
from  the  underwriters.^  So  too,  it  has  been  held  that 
the  sale  of  the  vessel,  by  the  owner,  subsequent  to  the 
making  of  the  shipping  articles,  does  not  discharge  his 
liability  for  the  wages  of  a  seaman,  though  the  voyage 
was  not  terminated,  nor  the  wages  demanded,  previous 
to  the  sale.-  But  where  there  was  a  contract  by  the 
master  of  a  ship  in  a  foreign  country,  for  the  sale  of  the 
ship,  and  a  delivery  in  pursuance  of  such  contract,  which 
was  afterwards  fully  ratified  by  the  owner,  and  the  mas- 
ter left  the  vessel  in  charge  of  a  new  master  appointed 
by  the  purchasers,  who  agreed  to  victual  and  man  the 
vessel  for  the  voyage,  it  was  held  that  a  mariner  who 
shi])ped  at  the  foreign  port,  under  the  new  master,  could 
not  look  to  the  former  owner  for  his  wages.^ 

But  the  actual  privity  of  contract  does  not  always  de- 
termine who,  as  owners,  are  liable  for  the  wages  of  mari- 
ners. A  party  may  neither  have  appointed  the  master, 
nor  hired  the  seamen,  yet  if  he  acquires  the  interest  of 
an  owner  in  the  vessel  and  receives  the  freight,  he  may 
be  liable  for  the  wages  earned  after  he  acquired  such  an 


'  Brooks  V.  Dorr,  2  Mass.  R.  39. 

''  Dronde  v.  Haven,  Gilpin's  R.  592.  See  also  The  Batavia,  2  Dods.  Adm. 
R.  500. 

'  Aspinuall  v.  Bartlctt,  8  Mass.  R.  483.  So  too,  in  relation  to  repairs 
and  supplies,  where  a  contract  for  the  sale  of  the  ship  has  been  made,  and 
possession  delivered  to  the  vendee,  the  fact  that  the  legal  title  remains  in 
the  vendor,  does  not  make  him  liable  for  the  contracts  or  conduct  of  the 
master.  Wendover  v.  Hogehoom,  7  Johns.  R.  308.  Leonard  v.  Hunting- 
ton, 15  Ibid.  298.     Thorn  v.  Hicks,  7  Cowen's  R.  697. 


MARINER'S   REMEDY  AGAINST  THE  OWiNER.  331 

interest.  Thus,  underwriters,  after  an  abandonment  is 
accepted,  become  owners  of  the  ship,  are  entitled  to  the 
freight  earned  subsequently  to  the  abandonment,  and  are 
liable  to  the  payment  of  the  wages  of  the  master  and 
mariners  for  the  residue  of  the  voyage  after  they  become 
owners.^  AVith  regard  to  the  mortgagee  of  a  vessel,  in 
the  analogous  cases  of  repairs  and  supplies,  it  is  the  set- 
tled doctrine  in  this  country,  that  the  mortgagee  in  pos- 
session, receiving  the  freight  and  employing  the  vessel, 
is  to  be  treated  as  owner ;  but  where  he  is  not  in  pos- 
session and  does  not  receive  the  freight,  he  is  not  to  be 
so  treated.^  But  the  cases  proceed  upon  the  importance 
of  the  question,  to  whom  was  the  credit  given  ?  Where 
the  dealing  has  been  with  the  mortgagor,  as  owner,  and 
he  retains  possession  of  the  ship,  the  mortgagee  is  not 
held  liable.  Where  there  has  been  no  dealing  with  the 
mortjrajror  in  the  character  of  owner,  but  the  credit  has 
been  given  to  the  person  who  may  be  owner,  it  is  said  to 
be  a  point  still  remaining  open  for  discussion,  whether 
the  liability  will  attach  to  the  beneficial,  or  to  the  legal 
owner.^ 

Now  with  respect  to  the  mariners,  the  fact  of  appoint- 
ing the  master  and  hiring  the  crew  is  of  itself  a  badge  of 


'  Hammond  v.  Essex  Fire  and  Mar.  Ins.  Co.,  4  Mason's  R.  196.  Thomp- 
son V.  Rowcroft,  4  East's  R.  34.  Sharp  v.  Gledstonc,  7  East's  R.  24.  Case  v. 
Davidson,  5  M.  and  S.  79.  MBride  v.  Mar.  Ins.  Co.,  7  Johns.  R.  431. 
Coolidfrr.  V.  Gloucester  Mar.  Ins.  Co.,  15  Mass.  R.  341. 

»  Mlnhjrr  V.  Scott,  8  Johns.  R.  123.  Champlin,  v.  Dnthr,  18  Ibid.  169. 
Thorn  V.  Htchs,  7  Cowen's  R.  G97.  Ring  v.  Franklin,  2  Hall's  N.  Y.  R.  1. 
Tucker  V.  Bvffington,  15  i\Iass.  R.  477.  Dame  v.  liadlock,  4  Pick.  R.  458. 
Brooks  V.  Bonsey,  17  Ibid.  441 .     Cohort  v.  Bonsey,  6  Greenlcaf 's  R.  474. 

»  See  3  Kent's  Coinm.  p.  135,  136,  edit.  1840. 


332  MAUINKR'S  RF.MF.DY  AGAINST  THE  OWNER. 

ownorsliip  ;  it  is  the  exercise  of  nn  nr-t  of  ownership, 
always  rcYwd  on  in  oiIkm-  cases,  and  in  the  case  of  a 
charter-part V  it  often  determines  who  is  owner  for  the 
voyaiie.  It  won  111  of  itself,  therefore,  furnish  some  pre- 
sumption, that  the  mortgagee,  who  did  not  hire  them, 
was  not  lial)l(>  to  j)ay  them.  Birt  if  the  mortgagee  has 
taken  the  control  of  the  vessel  and  receives  the  freight, 
althongii  the  master  and  crew  had  been  hired  by  the 
mortgagor,  would  he  not  then  be  liable  at  least  for  the 
wages  earned  after  such  possession,  upon  the  same  ground 
as  the  underwriter  is,  who  has  accepted  an  abandonment? 
Would  he  not  also  be  liable  for  the  whole  wages  of  the 
voyage,  if  he  had  received  sufficient  freight  ? 

In  an  action  in  the  Supreme  Court  of  New  York, 
brought  by  the  master  of  a  vessel  for  his  wages  and  those 
of  his  apprentice,  it  appeared  that  the  defendant  held  a  bill 
of  sale  of  the  ship,  absolute  in  its  terms,  was  named  as 
owner  in  the  register,  and  wrote  the  usual  letter  of  instruc- 
tions to  the  master,  when  about  to  sail  on  the  voyage.  The 
master  was  hired  for  the  voyage  by  the  vendors  of  the  ship. 

For  the  defendant,  it  was  proved  that  the  bill  of  sale, 
though  absolute  on  its  face,  was  given  as  collateral  secu- 
rity, by  way  of  mortgage  ;  that  he  merely  lent  his  name 
to  cover  the  voyage,  but  was  not  interested  in  it,  and 
did  not  receive  the  freight,  and  that  the  plaintiff  had  full 
knowledge  of  these  facts.  The  court  held,  that  whether 
the  defendant  were  to  be  considered  as  an  absolute  pur- 
chaser, or  as  a  mortgagee  in  possession,  would  be  imma- 
terial, provided  there  was  an  actual  contract  of  hiring 
between  him  and  the  plaintiff;  and  that,  in  either  case, 
the  relation  of  master  and  owner  would  exist,  so  far  as 
to  support  the  claim  for  wages,  if  the  voyage  icas  per- 


MARINER'S  REMEDY  AGAINST  THE  OA\TS'ER.  333 

formed  for  the  nse  of  the  defendant.  But  as  the  de- 
fendant was  not  interested  in  the  voyage,  and  the  master 
knew  this,  he  must  look  to  the  actual  employers  with 
whom  he  made  his  contract.^ 

In  a  case,  before  Lord  Stowell,  it  appeared  that  a  firm 
of  bankers  had  taken  a  conveyance  of  a  vessel  as  secu- 
rity for  a  balance  of  account,  to  be  sold  and  disposed  of, 
in  trust,  to  pay  themselves,  and  to  account ;  they  ap- 
pointed an  agent,  who  entered  into  copartnership  with 
one  S.  and  this  latter  firm  employed  the  vessel  as  agents 
for  the  bankers  ;  the  vessel  was  continued  by  them  in 
the  Norwegian  trade,  in  which  she  had  been  employed 
by  the  former  owners,  under  the  name  of  one  Gersse, 
the  master,  as  owner,  who  was  represented  as  such,  in 
order  to  evade  the  laws  of  Norway.  The  mariner  suing 
was  hired  in  the  Shetland  Isles,  to  go  upon  one  of  these 
Norwegian  voyages.  It  appeared  in  the  cause,  that  the 
bankers,  in  an  answer  filed  in  the  Court  of  Chancery  to 
a  bill  by  the  former  owners,  had  sworn  that  they  were 
the  owners  of  the  vessel,  at  a  time  when  the  mariner's 
services  were  rendered.  A  protest  was  entered  against 
the  mariner's  suit,  upon  the  ground  that  the  question  of 
ownership  was  unsetthul  in  the  Court  of  Chancery.  But 
Lord  Stowell  overruled  it,  ))artly  upon  the  ground  of  the 
positive  admissions  contained  in  tlie  answer,  and  partly 
because  from  the  other  facts  it  aj)peared  that  the  bankers 
had  employed  the  vessel  for  their  own  benefit  and  receiv- 
ed its  earnings  ;  and  ihey  were  accordingly  held  liable 
for  the  mariners'  wages.^ 

'   Champlm  v.  Jfu/lcr,  18  Johns.  R.  1G9. 
•  r/ie  St.  Johan,  1  H:igg.  Adin.  R.  334. 


33-1.  MARINER'S  RF.MF.DY  AGAINST  THE  OWNER. 

From  these  and  the  analogous  cases  of  repairs  and 
supplies,  it  would  seem  that  the  naked  legal  title,  or  the 
possession,  being  in  the  mortgagee,  is  not  suflicient  to 
charge  him  with  the  wages  of  marin(;rs,  unless  he  re- 
ceives the  freight,  or,  what  is  the  same  thing,  unless  the 
voyage  is  performed  for  his  benefit.  ]5ut  if  the  legal 
title,  or  the  possession,  be  ticcompanied  Avith  an  interest 
in  the  voyage  for  his  own  benefit,  he  may  be  charged  with 
the  wages  of  the  mariners.^ 

In  the  cases  of  charter-parties,  the  fact  of  hiring  the 
master  and  crew  is  also  of  great  consequence,  in  deter- 
mining whether  the  general  owner,  or  the  hirer,  is  to  be 
deemed  owner  of  the  ship  for  the  voyage ;  the  general 
doctrine  being  that  where  the  general  owner  retains  the 
possession,  control  and  navigation  of  the  ship,  that  is  to 
say,  where  he  supplies  the  necessaries  for  the  voyage, 
and  appoints  the  master  and  crew,  the  charter-party  is  a 
mere  affreightment  sounding  in  covenant,  and  the  gen- 
eral owner  remains  owner  for  the  voyage  ;  but  that 
where  the  freighter  hires  the  possession,  control  and 
navigation  of  the  ship,  agreeing  to  pay  the  master  and 
crew,  he  becomes  owner  for  the  voyage,  and  the  general 
owner  has  not  the  privileges  and  responsibilities  of  own- 
ership, in  respect  to  third  persons,  for  that  voyage.^     But 

'  Registered  ownership  is  prima  facie  evidence  of  liability  for  the  re- 
pairs of  a  ship ;  but  it  may  be  rebutted  by  showing  that  the  credit  was 
given  to  another.     Cox  v.  Rdd,  1  Ryan  and  Moody's  R.  199. 

^  Christie  v.  Lewis,  2  B.  and  Bingh.  410.  Marcadier  v.  Chesapeake 
Ins.  Co.,  8  Cranch's  R.  39.  Grade  v.  Palmer,  8  Wheaton's  R.  605. 
Hallet  V.  Col.  Ins.  Co.,  8  Johns.  R.  209.  Clarkson  v.  Edes,  4  Cowen's  R. 
470.  M'Inttjre  v.  Bowne,  1  Johns.  R.  229.  The  Volunteer  and  Cargo,  1 
Sumner's  R.  551.  Certain  Logs  of  Mahogany,  2  IhiA.b^Q.  The  Schooner 
Tribune,  3  Ibid.  144.     Taggard  v.  Loring,  IG  Mass.  R.  336.     Emery  v. 


MARIJNER'S  REMEDY  AGAINST  THE  OWNER.  335 

the  question  who  is  to  pay  the  crew,  which  has  so  much 
influence  in  determining  the  question  of  ownership  for 
the  voyage,  is  here  the  question  to  be  determined.  It 
may  be  supposed  to  arise,  then,  in  the  case  of  a  letting 
of  the  ship  to  the  master,  or  any  other  person,  upon  such 
terms  as  amount  to  a  charter-party,  with  an  agreement 
as  between  themselves,  that  the  hirer  shall  victual  and 
man  her.  The  hirer,  or  the  master  appointed  by  him, 
engages  the  crew,  who  have  no  knowledge  of  the  char- 
ter-party. Can  they  in  such  case  look  to  the  general 
owner  of  the  ship  for  their  wages  ? 

This  question  has  never  been  directly  decided.  But 
in  all  the  analogous  cases,  it  has  been  held,  as  above 
stated,  that  the  general  owner,  under  such  circumstan- 
ces, is  not  entitled  to  the  privileges,  and  is  not  under  the 
responsibilities  of  ownership,  for  the  particular  voyage 
when  the  ship  is  so  chartered.  Thus  it  has  been  held 
that  where  the  master  has  so  hired  the  ship  of  the  gen- 
eral owner,  as  to  be  owner  for  the  voyage,  he  cannot 
commit  barratry,  and  that  the  general  owner  cannot 
recover  of  an  underwriter  for  what  would  have  been  bar- 
ratry, if  the  relation  of  owner  and  master  had  existed.^ 

Hersey,  4  Greenl.  R.  407.  The  Revised  Statutes  of  Massachusetts  have 
enacted  the  same  doctrine,  in  part.  Ch.  32,  sec.  3.  Whether  the  fact 
that  the  general  owner  is  to  pay  the  master  and  crew,  and  furnish  the 
supplies,  is  conclusive  upon  the  question  of  ownership  for  the  voyage,  see 
the  opinion  of  the  court  in  the  case  of  Certain  Logs  of  Mahogany,  supra. 
The  American  doctrine  seems  to  be,  that  it  is  very  strong  prima  facie 
evidence  that  the  general  owner  is  to  be  deemed  owner  for  the  voyage. 
Ibid,  and  the  cases  ante. 

'  Taggard  v.  Loring,  IG  Mass.  R.  33G.  JIallct  v.  Cohnnhian  Ins.  Co., 
8  Johns.  R.  200.  And  the  same  is  true  if  the  master  be  the  general  owner 
of  the  ship.     Marcadirr  v.  Chesapeake  Ins.  Co.,  8  Cranch's  R.  39. 


SS6  MARINKU'S  RKMKDY   A(;A1NST  THE  OWNER. 

On  tlio  contrary,  if  tlic  general  owner  is,  by  the  cliartcr- 
part}',  to  victual  and  man  the  sliip,  he  riMnains  owner  for 
the  voyage,  and  may  recover  of  insurers  for  an  act  of 
harratrv  committed  by  the  master  at  the  instance  of  the 
charterer,'  If  by  the  terms  of  the  charter-party  the  gen- 
eral owner  is  not  owner  for  the  voyage,  he  has  no  lien 
on  the  cargo  for  the  freight;  but  he  has  such  a  lien,  if 
the  letting  of  the  ship  amounts  only  to  a  covenant  to 
carry  the  cargo.^  So  too,  if  the  general  owner  has 
divested  himself  of  all  control  and  possession  of  the  ship 
for  the  time  being  in  favor  of  another,  he  is  not  liable  for 
stores  furnished  by  order  of  the  master  during  such  time  f 
but  if  the  vessel  is  navigated  by  a  master  appointed  by 
the  general  owner,  and  is  supplied  and  furnished  by  him, 
the  liability,  with  respect  to  all  third  persons,  for  the 
master's  doings,  remains  with  the  general  owner.'' 

Upon  principle,  therefore,  it  would  seem  that  the 
hirer  of  the  ship,  in  the  case  supposed,  is  personally  lia- 
ble to  the  mariners,  and  that  they  cannot  look  to  the 
general  owner. 

>  MIntyre  v.  Bowne,  1  Johns.  R.  229. 

*  The  Volunteer  and  Cargo,  1  Sumner's  R.  551.  Certain  Logs  of  Ma- 
hogany, 2  Ibid.  589.  Grade  v.  Palmer,  8  AVheaton's  R.  605.  Drinkwater 
v.^The  Spartan,  Ware's  R.  149.     The  Phebe,  Ibid.  266. 

^  Frazier  v.  Marsh,  13  East's  R.  239.  Emery  v.  Hersey,  4  Greenl.  R. 
407. 

♦  Fletcher  v.  Braddick,  5  Bos.  and  Pul.  182. 


CHAPTER  II. 

OF    THE    CIVIL    REMEDIES     OF     MARINERS     FOR     PERSONAL 

TORTS. 

For  the  various  personal  injuries  which  the  master  of 
a  vessel  may  inflict  on  a  mariner,  or  which  one  mariner 
may  inflict  on  anotiier,  the  law  has  provided  ample  rem- 
edy. We  have  seen  that  the  master  is  sometimes  held 
responsibhi  for  wrongs  done  by  those  whom  he  ought  to 
have  restrained,  or  wlien  they  are  done  by  his  express 
or  presumed  command.^  How  far  liability  as  joint  tres- 
passers will  extend  to  different  parties,  will  appear  in 
considering  the  various  cases  of  torts  and  injuries  com- 
mon in  the  merchant  service. 

1.  Assaults  and  batteries  and  imprisonments. 

For  these  injuries,  the  mariner  has  a  remedy  against 
the  actual  and  presumed  trespasser,  by  an  action  of  tres- 
pass at  common  law,^  or  by  a  libel  in  the  Admiralty,  in 
what  is  technically  called  a  cause  of  damage.^     Where 

'  Ante,  Tart  I,  ch.  2,  p.  26,  27. 

«  Walson  V.  Christie,  3  Bos.  and  Pul.  224.  Sampson  v.  Smith,  15  Mass. 
R.  355.     Bronn  v.  Howard,  15  Johns.  R.  119.    Ward  v.  Ames,  9  Ibid.  138. 

'  Thomas  v.  Lane,  2  Sumner's  R.  1.  Thornc  v.  White,  1  Petcrs's  Adm. 
R.  172,  174.  Hutchinson  v.  Cnomhs,  Ware's  R.  G5.  FAweU  v.  Martin,  Ibid. 
53.  Jrnks  V.  Lnins,  Ibid.  51.  Bansrs  v.  Littl<;  Ibid.  506.  BulUr  v  M' Lil- 
ian, Ibid.  219.  St((dr.  V.  Tliachrr,  Ibid.  9L  Jfulson  v.  Jordan,  Ibid.  385. 
Polydore  v.   Pnncr,   ibid.  402.     Pratt  v.    Thomas,  Ibid.  427,  496.     The 

43 


338  LIABILITY  OF  JOINT  TRESPASSERS. 

the  iiijm  V  complained  of  is  actually  coniniittod  by  the 
mate,  or  any  oilier  seaman,  at  the  master's  order,  byway 
of  punishment,  the  master  is  liable,  if  the  punishment  is 
excessive.'  If  the  assault  were  not  committed  by  the 
master's  order,  but  was  yet  done  in  his  ])resence,  and  he 
might  have  interfered  to  prevent  it,  but  did  not,  he  will 
then  also  be  liable,  being  presumed  to  adopt  the  conduct 
of  the  trespasser.^  AVhether  the  party  inflicting  the 
assault,  by  the  master's  order,  in  the  way  of  punishment, 
is  jointly  liable  with  the  master,  depends  on  the  degree 
of  the  injury  and  the  circumstances  of  justification.  The 
mate,  or  other  person,  ordered  to  inflict  punishment, 
is  bound  to  obey,  unless  the  master  clearly  passes  the 
bounds  of  his  lawful  authority  ;  to  justify  himself  for  re- 
fusing to  do  so,  it  would  be  necessary  to  show  that  the 
master  was  proceeding  with  cruelty  and  passion  to  inflict 
a  gross  injury.  It  has  therefore  been  held,  that  the 
mate,  or  other  person,  punishing  a  seaman  in  obedience 
to  the  master's  order,  is  not  liable  as  a  joint  trespasser, 
unless  the  punishment  is  obviously  and  grossly  excessive 
and  unjust.^  But  if  the  justification  fails  wholly,  or  in 
part,  as  if  it  appears  that  an  officer,  in  executing  the 
command  of  the  master,  proceeded  with  unnecessary 
harshness  and  severity,  and  a  serious  injury  is  inflicted, 

Agincourt,!  Hagg  Adm.  R.  271.  The  Lowther  Castle.lhid.  384.  The 
Centurion,  Ibid.  161.     The  Enchantress,  Ibid.  395. 

'  Thomas  v.  Lane,  2  Sumner's  R.  1.  Plummer  v.  Welh,  Ware's  R.  75. 
Elwell  V.  Martin,  Ibid.  83.  Butler  v.  M'Lellan,  Ibid.  219.  Hutson  v.  Jor- 
dan, Ibid.  335.  Brown  v.  Howard,  14  Joiins.  R.  119.  Watson  v.  Christie, 
3  Bos.  and  Piil.  224. 

*  Thomas  V.  Lane,  Elwell  v.  iMarttn,  Butler  v.  M'Lellan,  ut  supra.  Ward 
V.  Ames,  9  Johns.  R.  138. 

'  Butler  V.  M'Lellan,  ut  supra. 


SHIP-OWISrER  NOT   A  JOI^^T  TRESPASSER.  339 

or  if  it  appears  that  the  master's  order  was  of  itself 
wholly  uiiJListiiiable  and  illegal,  the  party  doing  the  ac- 
tual injury  will  then  be  liable  as  a  joint  trespasser.^ 

Whether  the  ship-owner  would  in  any  case  be  liable 
for  the  consequential  injuries  occasioned  by  excessive  pun- 
ishment of  a  mariner,  by  the  master,  is  a  point  which  I 
have  never  known  to  be  raised  judicially.  It  is  laid  down 
generally  that  the  owners  are  liable  for  the  torts  of  the 
master  in  acts  relative  to  the  service  of  the  ship,  and 
within  the  scope  of  his  employment  in  the  ship.^  The 
cases  in  which  this  liability  is  most  familiarly  known  are 
those  of  collision,  and  torts  committed  by  the  masters 
of  privateers  in  making  captures.^  The  punishing  of  a 
seaman  is  in  one  sense  an  act  relative  to  the  service  of  the 
ship,  as  much  as  the  shipping  of  a  seaman ;  and  it  has 
recently  been  held  by  an  eminent  judge,  that  the  owners 
are  responsible  in  damages  for  the  tortious  abduction  of 
a  minor  by  their  agent,  the  master,  in  shipping  him, 
although  constructive  notice  only  was  brought  home  to 
them."*  But  the  case  of  excessive  punishment  is  distin- 
guishable from  (his,  by  being  a  trespass,  of  the  kind  for 
which  the  ])rincipal  is  not  liable,  when  committed  by  the 
agent.  The  master  ])unishes  a  seaman  by  the  exercise 
of  an  authority  conferred  u\nm  him  by  law  ;  and  whoever 
exceeds  such  an  authority  becomes  a  trespasser  ub  initio, 

'  Elwell  V.  Martin,  Ware's  R.  83.  Brown  v.  Hoivard,  15  Johns.  R.  119. 
In  the  former  case,  it  was  held  that  if  some  punishment  was  merited,  the 
officer  is  liable  for  the  actual  pecuniary  damage  sustained,  but  not  for  vin- 
dictive damages. 

'  Abbot  on  Ship,  part  2,  ch.  2,  sec.  9,  11,  p.  98,  99,  edit.  1829. 

*  Ibid,  note  to  p.  99. 

«  Sherwood  v.  Hall,  3  Sumner's  R.  127. 


340  REMEDY  FOR  A  TORTIOUS  DISCHARGE. 

For   sucli   trespasses   of  tlic  aj^ent   the   jnincipal  is  not 
liable.' 

2.  Tortious  discharge  of  a  mariner. 

Tlie  measure  of  daiiuiiies  in  these  cases  has  heen  stated 
in  a  lornier  chapter.'  They  are  ordinarily  recovered  as 
wai;;es,  and  are  recoverable  against  the  owner,  as  well  as 
the  master,  in  the  same  manner  as  in  other  cases  of 
wages.  The  remedy  against  the  master  and  against  the 
owner  might  be  sought  upon  two  grounds.  First,  it 
would  be  by  a  si)ecial  action  for  the  tort  committed  by 
the  master,  in  the  illegal  discharge,  and  for  this,  upon 
the  principles  before  alluded  to,  the  owner,  it  seems, 
would  be  responsible.  Secondly,  and  what  is  the  more 
common  form,  it  would  be  by  an  action  for  the  wages 
upon  the  original  contract  of  hiring,  the  tortious  discharge 
being  a  void  act,  and  the  contract  remaining  in  full  force. 
If  non-performance  of  his  contract  be  pleaded,  the  mari- 
ner then  shows  that  he  was  prevented  from  performing 
by  the  act  of  the  master,  and  recovers  such  damages  in 
the  shape  of  wages  as  the  rules  of  law  have  established 
in  these  cases.^ 

3.  Tortious  abduction  of  a  minor. 

This  is  a  marine  tort,  the  remedy  for  which,  as  recently 
made  familiar  in  admiralty  proceedings,  resides  in  the 
hands  of  the  parent,  or  other  person  entitled  to  the  cus- 
tody and  earnings  of  an  infant.     The  incapacity  of  a  mi- 


'  Story  on  Agency,  ch.  12,  sec.  308,  309,  310,  319. 

'  Ante,  Part  IV,  ch.  2,  p.  299. 

«  Hall  V.  Heightman,  2  East's  R.  145.  Sigard  v.  Roberts,  3  Esp.  R.  71. 
Limland  v.  Stevens,  Ibid.  269.  Sullivanv.  Morgan,  11  Johns.  R.  66.  Wil- 
cocks  V.  Palmer,  3  Wash.  R.  248.  Emerson  v.  Rowland,  1  Mason's  R.  45. 
Orne  v.  Townsend,  4  Ibid.  541,  and  the  cases  cited  ante,  p.  299,  230. 


REMEDY  FOR  A  TORTIOUS  ABDUCTIOK.  341 

nor  to  enter  into  the  manner's  contract,  ^A-ithout  the  con- 
currence of  the  parent  or  guardian,  is  stated  in  a  former 
chapter.^  The  gist  of  this  tort  consists  in  the  loss  of 
service  f  but  it  has  also  been  held,  in  one  case,  that  it 
may  consist  in  withdrawing  the  child  from  the  supervision 
and  control  of  the  parent,  even  if  he  is  not  an  inmate  of 
his  father's  family,  and  though  he  may  have  been  jninci- 
pally  left  to  support  himself  by  his  own  exertions,  unless 
it  appears  that  the  father  has  abandoned  all  care  of  his 
child.^' 

The  suit  in  these  cases  lies  ordinarily  against  the  mas- 
ter, actually  committing  the  tort ;  but  in  a  recent  case,  it 
has  been  held  that  the  ship-owner  may  be  charged  with 
the  damages,  the  court  considering  it  one  of  those  cases 
in  which  he  is  responsible  for  the  torts  of  the  master  in 
acts  relative  to  the  service  of  the  ship,  and  ^^ithin  the 
scope  of  his  employment  in  the  ship.* 

'  Ante,  Part  I,  ch.  2,  p.  14. 

=*  Plummer  v.  Webb,  4  Mason's  R.  3S0.  S.  C.  Ware's  R.  75.  Sherwood 
T.  Hall,  3  Sumner's  R.  127. 

'  Steele  v.  Thacher,  Warp's  R.  91,  102.  As  to  when  a  minor  becomes,  in 
a  qualified  sense,  emancipated  by  the  parent's  neglect,  see  1  Blackstone's 
Comm.  ch.  16.  Jenny  v.  Aldcn,  12  Mass.  R.  375.  Nightingale  v.  With- 
ington,  15  Ibid.  272. 

*  Shenoood  Y.  Hall,  3  Sumner's  R.  127. 


CHAPTER  III. 


OF     THE    ADMIRALTY     AND     COMMON     LAW     JURISDICTIONS 

IN  mariners'   cases. 

A  VIEW  of  the  forms  and  systems  in  which  the  jurispru- 
dence of  a  country  administers  the  principles  governing 
lights  and  duties,  is  an  important  branch  of  the  subject 
of  remedy.  But  it  is  not  my  purpose,  nor  could  it  be 
within  the  limits  of  this  work,  to  examine  the  general 
foundations  of  the  admiralty  and  common  law  jurisdic- 
tions, still  less  to  enter  into  that  vexata  qucestio,  the  gen- 
eral limits  of  each  of  them ;  but  to  state  the  principles 
and  outlines  of  the  remedies  afforded  by  each,  in  taking 
cognizance  of  contracts  and  torts  in  mariners'  cases. 

I.  Of  the  Admiralty  Jurisdiction. 

It  seems  quite  certain,  that  in  all  the  maritime  powers 
of  Europe,  from  the  earliest  periods  of  their  commerce, 
peculiar,  though  not  always  exclusive  cognizance  over 
maritime  affairs,  was  committed  to  a  branch  of  the  judi- 
cial power  specially  designated  for  this  purpose.^  In  the 
English  constitution,  this  jurisdiction,  exercised  by  a  great 
officer  of  state,  called  the  Lord  High  Admiral,  became 

'  Valin,  Comm.  tome  i,  p.  120.  De  Lovio,  v.  Boit,  2  Gallison's  R.  400, 
and  the  authorities  there  cited.  2  Brown's  Civ.  and  Adm.  Law,  ch.  1, 
passim. 


ORIGIN  OF  THE  ADMIRALTY  JURISDICTION.  343 

known  as  the  admiralty  jurisdiction.^  At  what  period  in 
the  history  of  that  constitution  it  began  to  be  exercised 
over  the  various  subjects  which  are  now  settled  to  be 
within  its  cognizance,  or  when  its  limits  were  most  fully 
extended  over  various  other  matters,  and  most  clearly  de- 
fined, are  questions  involved  in  the  same  obscurity  which 
rests  upon  almost  all  institutions  of  a  similar  character 
and  upon  the  history  of  the  common  law  itself.  But 
there  can  be  no  doubt  that  there  was,  practically,  the 
same  substantial  division  of  the  judicial  power  in  Eng- 
land, as  in  France,  and  that  the  jurisdiction  claimed  by 
the  admiraltv  lawyers  as  the  proper  theory  and  ancient 
practice  of  their  court,  was  substantially  the  same  as  that 
known  to  the  French  constitution,  which  in  modern  times 
was  defined  and  recorded  in  the  great  Ordinance  of 
Louis  XIV.-  But  in  the  progress  of  time,  doubts,  con- 
flicts and  controversies  upon  the  extent  of  jurisdiction 
necessarily  arose,  springing  partly  from  the  constitutional 
position  in  which  the  divided  judicial  power  was  placed, 
and  partly  from  the  diverse  spirit  and  system  of  the  law 
which  each  branch  of  the  judicature  was  accustomed  to 
administer.^  The  personal  ambition  and  predilections  of 
judges  and  advocates  mingled  with  these  causes  of  con- 
troversy ;  and  at  length,  in  the  confusion  of  this  conflict 
of  jurisdictions,  the  ancient  outlines  and  theory  of  each 
were  lost  in  the  contradictory  decisions  made  under  such 
disturbiuir  influences.     The  jurisdiction  of  the  admiralty, 

'  2  Brown's  Civ.  and  Adm.  Law,  ch.  1,  p.  21,  et  scq. 

*  Liv.  1,  lit.  2,  df.  la  Competence. 

*  Valin  shows  thai  the  same  controversy  was  carrird  on  in  France,  tome  i, 
p.  120.  Indeed,  it  seems  to  me  to  have  been  the  unavoidable  result  from 
the  very  position  of  things. 


344    EXTENSION  OF  ADMIRALTY  JURISDICTION  IN    ENGLAND. 

being  that  rxcrcisiMl  originally  by  a  grant  from  the  king 
to  a  snbjoct,  could  bo  restrained  by  that  superior  jurisdic- 
tion, in  which  the  king  had  reserved  all  that  he  had  not 
granted  away.'  The  power  and  dignity  and  learning  of 
the  conniion  law,  as  long  as  the  commerce  of  England 
remained  comiKiratively  small,  grew  far  out  of  jiroportion 
with  those  of  the  civil  and  maritime  law,  as  known  and 
practised  within  the  realm.-  The  contest  was  an  une- 
qual one  ;  and  the  result  to  the  jurisprudence  of  the 
country  was,  to  deprive  the  admiralty  of  some  part  of  a 
jurisdiction,  which  anciently  belonged  to  it  upon  prin- 
ciple, and  to  leave  it  wholly  uncertain  whether  other 
powers,  reputed  to  have  been  exercised  by  it,  did  or  did 
not,  upon  the  principles  of  the  constitution,  rightfully  be- 
long to  it. 

But  the  commerce  of  England  has  grown  to  an  im- 
mense importance.  Its  maritime  interests  seem  to  have 
demanded  anew  the  peculiar  convenience  and  fitness  of 
a  Jurisdiction  well  adapted  to  the  ends  of  despatch  and 
equity,  two  great  wants  in  a  commercial  jurisprudence. 
The  present  reign  has  witnessed  a  large  restoration  of 
powers  in  the  Court  of  Admiralty,  which  had  been  long 
withheld  from  it,  though  claimed  as  its  ancient  right.^  A 
comparison  of  its  present  jurisdiction  with  that  exercised 
in  this  country,  would  show  that  our  institutions,  spring- 
ing from  the  same  common  origin,  have  wisely  preserved 
and  confirmed  a  jurisdiction  and  mode  of  procedure,  the 
fitness  of  which  a  great  commercial  country  has  so  sig- 
nally recognised. 

'  Blackstone's  Coram,  book  3,  ch.  7,  p.  112. 

*  Ibid.  vol.  i,  p.  63—92. 

=•  3  and  4  Vict.  ch.  65,  7th  Aug.  1840. 


ADMIRALTY  JURISDICTION  OVER  WAGES.  345 

Upon  the  state  of  things  existing  at  the  time  of  its 
establishment,  the  Constitution  of  the  United  States 
granted  to  the  judicial  power,  to  be  vested  in  such  tri- 
bunals as  Congress  should  establish,  cognizance,  among 
other  things,  of  "  all  cases  of  admiralty  and  maritime  ju- 
risdiction.'" It  is  not  material  here  to  discuss  what  sub- 
jects are  within  this  clause  ;  nor,  if  it  were,  could  I  hope 
to  throw  any  new  light  upon  this  interesting  question. 
The  present  purpose  only  requires  me  to  point  out,  that 
the  contract  for  marine  service,  though  made  upon  land, 
but  to  be  rendered  substantially  upon  tide  waters,  is 
clearly  a  case  of  admiralty  jurisdiction,  and  must  be  taken 
to  have  been  within  the  contemplation  of  the  constitution, 
from  the  nature  of  the  subject  matter. 

The  state  of  things  previous  to  the  adoption  of  the 
constitution  is  important. 

In  England,  mariners'  wages  had  been  treated  as  an  ex- 
ception from  that  construction  of  the  statutes  of  Richard  II, 
for  which  the  common  law  courts  contended.  Lon«r  an- 
terior  to  the  famous  resolutions  of  the  judges  in  the  reign 
of  Charles  I.,  the  jurisdiction  over  mariners'  wages  had 
been    more   than   once  affirmed.^     Though  occasionally 

•  Art.  3,  sec.  2. 

*  Mr.  Justice  Story,  in  De  Lovio  v.  Boil,  (2  Gallison's  R.  453,)  cites  ^non. 
Winch.  8,  in  the  19lh  James  I,  ns  tlie  earliest  case  in  the  reports  in  which 
the  jurisdiction  was  atTirmed.  He  did  not  mean,  probably,  to  give  that  as 
the  first  afTirmation  of  the  jurisdiction,  but  as  the  first  admission  of  it  by 
tlie  courts  of  common  law.  There  is  a  far  more  solemn  allirmalion  of  it 
than  a  judgment  at  Westminster  upon  a  writ  of  prohiliiiion  ;  which 
shows  that  it  was  exercised  by  the  admiral,  as  a  settled  jurisdiction,  at 
and  after  the  very  time  when  the  restraining  statutes  of  Richard  II.  were 
enacted.  One  of  these  statutes  dates  in  the  thirteenth  and  the  other  in  tiie 
fiftcenih  yer.r  of  that  reign.  Sir  Leoliiie  Jenkins,  in  his  Argument  before 
the  House  of  Lords,  upon  a  bill  to  settle  the  admiralty  jurisdiction,  cites  a 

44 


3-i6  ADMIKALTV  JIHUSDICTION  OVER  WAGES. 

dcnuMl,  and  aiiain  acMjuiosccd  in  from  tinio  to  time,  by 
the  coiiiniou  law  courts,  professedly  as  a  matter  of  favor 
to  the  suitors,  on  account  of  the  speed  with  which  Justice 
^vas  administered  and  of  the  convenience  of  joining  seve- 
ral parties  in  one  suit,  the  contest  was  fnially  given  up ; ' 
and  the  resolutions  subscribed  by  the  judges  before  the 
king  in  council,  in  1632,  and  the  Ordinance  of  the  Com- 
monwealth of  1648,  expressly  confirm  the  jurisdiction 
over  "  mariners'  wages,"  totidem  verbis.^  At  the  restora- 
tion, the  ordinance,  which  had  been  made  perpetual  in 
1663,  fell  with  the  other  acts  of  the  commonwealth  ;  but 
the  merchants  petitioned  for  a  reestablishment  of  rules 
similar  to  those  settled  in  1632,  and  upon  this  occasion. 
Sir  Leoline  Jenkins  discussed  before  the  House  of  Lords 
the  principles  upon  which  the  jurisdiction  rested.^ 

Parliamentary  Roll  of  14  Richard  II.  (Rot.  Pari.  11,  37,)  in  which,  he  says, 
"  the  owners  of  ships  trading  out  of  England  into  France,  complain  to 
Parliament,  that  mariners,  by  a  combination,  did  exact  twice  as  much 
salary  and  freight  as  they  had  used  to  do  in  King  Edward  Ill's  time,  and 
would  not  serve  in  English  bottoms,  to  the  detriment  of  the  owners  and 
navy  of  England  ;  for  redress  whereof  they  pray,  that  the  mayor  and  bai- 
liffs of  towns,  where  such  mariners  lived,  might  have  power  to  punish 
them,  at  the  suit  of  every  man  that  complained.  To  this  the  king  con- 
sents. But  how?  Not  to  the  prejudice,  or  in  derogation  of  the  admiral's 
lawful  and  ancient  jurisdiction  :  but  answers,  that  he  will  charge  his  admi- 
rals to  ordain,  that  the  mariners  should  have  that  which  was  reasonable 
for  their  service,  and  to  punish  them  if  they  did  otherwise.  Mariners  were 
then  hired  at  Wapping  and  the  bank  side,  as  now  they  are,  and  the  querela 
did  arise  upon  the  land  ;  yet  the  admirals  were  ever  allowed  to  have  the 
cognizance  of  it."  Jenkinses  Argument  in  the  House  of  Lords,  Works  by 
Sergt.  Wynne,  fol.  Lond.  1724,  vol.  1. 

•  It  would  be  cumbrous  to  cite  here  the  cases  showing  the  history 
of  this  controversy.  They  are  collected  in  De  Lovio  v.  BoU,  2  Gallison's 
R.  453  to  461. 

*  2  Brown's  Civ.  and  Adm.  Law,  77,  78,  contains  both  these  docu- 
ments. 

'  See  his  argument,  cited  supra. 


ADMIRALTY  JURISDICTION  OVER  WAGES.  347 

This  course  of  history  is  not  without  importance  at 
the  present  day,  and  in  this  country ;  for  if  it  appears 
that  mariner's  wages  were  first  treated  as  a  case  of 
admiralty  jurisdiction,  not  merely  ex  gratia^  and  because 
the  cause  could  be  decided  "  between  tide  and  tide,"  but, 
upon  princi])le,  because  it  was  a  case  of  maritime  service, 
over  which  this  branch  of  the  judicial  power  exercised  a 
general  superintendence,  there  is  then  no  difficulty,  in  prin- 
ciple, in  admitting  all  classes  of  persons  to  sue  in  the 
admiralty,  ^^•ho  perform  any  service  for  hire  on  board  a 
vessel  upon  tide  waters.  Especially  would  this  be  so, 
under  our  constitution,  if  it  appears  that  the  admiralty 
jurisdiction,  as  it  had  been  exercised  in  this  country  just 
before  the  revolution,  was  so  understood  and  practised, 
as  to  be  grounded  on  the  nature  of  the  service,  and  was 
a  general  jurisdiction  resting  upon  principle. 

Now  it  seems  that,  in  England,  if  we  may  trust  the 
citation  made  by  Jenkins  of  the  Parliamentary  roll  of  14 
Richard  II,  that,  at  the  time  when  the  restraining  statutes 
of  that  reign  were  enacted,  a  contemporaneous  construc- 
tion was  given  to  them,  which  sho^Ns  that  they  were  cer- 
tainly not  designed  and  not  understood  to  touch  the  ad- 
miralty jurisdiction  over  mariner's  wages  and  the  affairs 
of  mariners  generall}-.  Il  appears  that  a  general  com- 
plaint being  made  that  mariners  extorted  too  high  wages, 
the  king  answered  that  he  would  give  his  admirals  charge 
to  ordain  that  they  should  have  what  was  reasonable  for 
their  service,  and  to  [)unish  thorn  if  they  did  otherwise; 
an  answer  which  shows  that  tiic  aduiiraltx  Ii.kI,  in  that 
age,  a  general  jurisdiction  over  the  coniiacis  ol"  liiis  class 
of  subjects,  grounded  on  their  ])rolessional  employment.' 

'  Ante,  p.  345,  note  2, 


348    ^  AOMIHALTY  JnUSDICTION  OVER  WAGES, 

It  is  rqiially  certain,  tliat  this  jmisdictioii  lias,  at  times, 
been  admitted  bv  tlie  eoiirts  of  eonunou  law,  to  be  an 
ancient  concurrent  jurisdiction,  as  old  as  the  constitution 
itself,  and  that  they  have  sonietiines  recognised  its  f'oun- 
datiou  to  be,  not  in  tlu^  place  where  the  contract  was 
made,  but  in  the  subject  matter  of  the  contract  for  mari- 
time service.'  Such,  it  seems  to  me,  is  the  ground  of  the 
jurisdiction  of  the  IJiiih  Court  of  Admiralty  as  ordinarily 
exercised  in  modern  times,  covering  as  well  the  services 
of  the  mariners,  strictly  so  called,  as  those  of  various 
other  persons  rendering  service  on  board.^ 

But  the  state  of  things  in  this  country  is  more  impor- 
tant. If  we  come  back,  then,  to  the  colonies,  we  know 
that  the  commissions  of  the  governors,  as  vice-admirals, 
authorized  them  to  take  cognizance  of  "  all  causes  civil 
and  maritime  ;"  ^  and  upon  investigating  the  actual  juris- 

'  Cokev.  Creichet,  3  Lev.  60.  Hmve  v.  Napier,  4  Burr.  1944.  Brown  v. 
Bcnn,  2  Lord  Raym.  1247.  The  Queen  v.  London,  6  Mod.  205.  See  also 
The  Courtney,  Edwds.  Adm.  R. 

^  Winch.  8.  Allesnn  v.  Marsh,  2  Vent.  181.  Anon.  3  Mod.  370.  Bens 
V.  Parr,  2  Lord  Raym.  1206.  King  v.  Ragg,  2  Stra.  858.  Baijkij  r. 
Vrant,  1  Lord  Raym.  632.  Read  v.  Chapman,  2  Slra.  37,  Mills  v.  Long, 
Sayer's  R.  136.  Wheeler  v.  Thompson,  1  Slra.  136,  The  Lord  Hohart, 
2  Dods.  Adm.  R.  note.  The  Prince  George,  3  Hagc.  Adm.  R.  376  ;  which 
was  that  of  a  purser.  Pilots,  too,  are  within  the  jurisdiction,  upon  the  same 
principle.  The  Kelson,  6  Rob.  Adm.  R.  227.  The  Benjamin  Frankin, 
Ibid.  3.i0.  The  Anne,  1  Mason's  R.  508,  Hobart  v.  Drogan,  10  Peters's 
S.  C.  R.  108. 

'  See  an  extract  from  the  commission  of  the  governor  of  New  Hamp- 
shire (6  Geo.  Ill,)  in  2  Gallis.  R.  470,  note.  The  commission  of  Governor 
Shirley,  of  Massachusetts,  as  vice-admiral,  in  the  15  Geo.  II,  authorizes 
hira  "  throughout  all  and  every  the  sea  shores,  publick  slreames,  ports,  fresh 
waters,  rivers,  creeks  and  arms,  as  well  of  the  sea  as  of  the  rivers  and 
coasts  whatsoever,  of  our  said  province  of  Massachusetts  Bay  and  territo- 
ries dependent  thereon  and  maritime  parts  whatsoever,  of  the  same  and 
thereto  adjacent,  as  well  within  liberties  and  franchises  as  without,  to  take 


ADMIRALTY  JURISDICTION  OVER  WAGES.  349 

diction  exercised  by  the  ^ice-admiralty  court  for  the 
Province  of  Massachusetts  Bay,  I  find  that  over  ilie  sub- 
ject of  mariners,  it  exercised  a  general  jurisdiction,  in 
rem,  in  personam,  for  specific  performance  and  for  rescis- 
sion of  the  contract,  without  reference  to  the  place  of  the 
hiring.  This  jurisdiction,  under  the  commissions,  must 
have  rested  upon  the  nature  of  the  cause,  as  "  civil  and 
maritime,"  and  on  the  ancient  theory  of  the  court,  that 
over  the  matter  of  maritime  service  it  had  a  rightful 
cognizance.^ 

There  is,  therefore,  as  it  seems  to  me,  every  reason  to 
hold,  that  mariner's  wages  are  within  the  clause  of  the 
constitution  as  "a  cause  of  admiralty  and  maritime  juris- 
diction," and  that  they  are  so  because  of  the  nature  of 
the  service  and  contract.^     If  this  be  true,  it  follows  that 

cognizance  of  and  proceed  in  all  causes,  civil  and  maritime,  and  in  com- 
plaints, contracts,  offences  or  suspected  offences,  crimes,  pleas,  debts,  ex- 
changes, accompts,  charter-parties,  agreements,  suits,  trespasses,  injuries, 
exloitionsand  demands  and  businesses,  civil  and  maritime  whatsoever  com- 
menced or  to  be  commenced  between  merchants  or  between  owners  and 
proprietors  of  ships  or  otlicr  vessels,  and  merchants  and  others  whomso- 
ever had,  made,  begun  or  contracted  for,  any  matter,  thing,  cause,  or  busi- 
ness whatsoever,  done  or  to  be  done  within  our  maritime  jurisdiction  afore- 
said, together  with  all  and  singular  their  incidents,"  &c.  MSS.  Records 
in  the  public  archives  of  Massachusetts. 

'  I  am  able  to  rescue  from  oblivion  a  portion  of  the  records  of  the  vice- 
admiralty  court  for  this  province,  for  the  year  1740,  during  the  time  of  the 
Honorable  Robert  Auchmuty,  as  judge  of  the  court.  Several  of  the  cases, 
illustrating  the  jurisdiction  exercised,  I  have  extracted  into  the  Appendix. 
They  show,  in  part,  more  clearly  than  any  documents  yet  published,  what 
was  the  admiralty  jurisdiction,  as  known  and  practised  in  this  country,  be- 
fore the  constitution  of  the  United  Slates. 

*  Mr.  Chancellor  Kent  apprehends  that  "  it  may  fairly  be  doubted,  whether 
the  constitution  of  the  United  States  meant,  by  admiralty  and  inariiiine 
jurisdiction,  any  thing  more  than  that  jurisdiction  which  was  settled  and 
in  practice  in  this  country  under  the  Englibh  jurisprudence,  when  the  con- 


350  PERSONAL  STANDING   IN  THC  ADMIRALTY. 

tlio  precise  station  or  employment  of  tlic  l)arty  is  imma- 
terial, ])rovi(le(l  his  service,  for  the  consideration  of  which 
he  sues  in  \hc  achniralty,  he  a  maritime  service.  It  will 
be  seen,  to  u  hat  extent  the  admirahy  jurisdiclion  is  ex- 
crcis(>d  in  lliis  countrv,  upon  this  principle. 

1.   Of  personal  standing  in  the  Court  of  Admiralty. 

Upon  principle,  if  the  foregoinc;  doctrine  is  correct, 
all  parties  performing  service  in  and  about  the  business 
of  a  vessel  engaged  in  maririme  trade  and  navigation, 
liave  ?i  persona  standi  in  judicio  in  the  Court  of  Admi- 
ralty, to  enforce  such  remedy  as  the  law  has  given  them.^ 
From  this  general  rule,  the  master  alone  seems  to  be  ex- 
cepted in  the  English  practice.  Although  the  surgeon, 
the  purser  and  the  carpenter  are  permitted  to  sue  in  the 
admiralty,"  the  master  is  not ;  and  the  reason  assigned 
by  the  courts  of  common  law,  and  referred  to  by  Sir 

stitution  was  made;  and  whether  it  had  any  retrospective  or  historical  ref- 
ence  to  the  usages  and  practice  of  the  admiralty,  as  it  once  existed,  in  the 
middle  ages,  before  its  territories  had  been  invaded  and  partly  subdued  by 
the  bold  and  free  spirit  of  the  courts  of  common  law,  armed  with  the  pro- 
tecting genius  and  masculine  vigor  of  trial  by  jury."  (1  Comm.  p.  377, 
edit.  1S40.)  With  the  latter  branch  of  the  doctrine  here  referred  to,  I  have 
nothing  to  do.  There  are  great  authorities  on  both  sides  of  the  question. 
I  doubt,  however,  whether  it  will  not  be  found,  the  more  the  vice-admiralty 
jurisdiction  in  this  country  is  investigated,  that  it  was  more  extensive  than 
is  commonly  supposed  by  the  profession.  But  my  design  has  been,  to  show 
that  the  contract  for  maritime  service  was  a  case  of  admiralty  jurisdiction 
as  understood  and  practised  in  both  countries,  before  the  constitution  was 
made,  not  merely  as  matter  of  indulgence,  but  upon  principle ;  not  con- 
fined to  the  sailors  merely,  but  including  all  parties.  Hence,  if  this  doctrine 
be  correct,  the  exception  made  in  the  English  practice  against  the  master, 
which  is  not  made  in  ours,  is  made  against  principle. 

'  The  father  may  sue  in  the  admiralty  for  the  wages  of  his  minor  son. 
(Plummer  v.  Webb,  4  Mason's  R.  380,)  and  the  master  for  those  of  his  ap- 
prentice or  slave.     {Emerson  v.  Howland,  1  Ibid.  45.) 

^  Sayer's  R.  p.  136.  Wheeler  v.  Thompson,  1  Stra.  The  Prince  George, 
3  Hagg.  Adm.  R.  376.     The  Test,  Ibid.  307. 


PERSONAL   STANDING  IN  THE  ADMIRALTY.  351 

William  Scott  himself,  as  that  upon  which  the  prohibition 
is  grounded,  is  because  he  is  supposed  to  stand  on  the 
security  of  his  personal  contract  with  his  owner,  not  re- 
lating to  the  bottom  of  the  ship.^  This  reason  contains 
only  an  objection  to  his  proceeding  in  rem ;  it  furnishes 
no  objection  whatever  to  his  suit  in  personam.  It  was 
assigned  at  times  —  and  as  part  of  the  same  doctrine  — 
when  it  was  held,  that  the  reason  why  mariners  were 
permitted  to  sue  in  the  admiralty  was  because  that  court 
could  enforce  their  lien  on  the  ship ;  and  it  seems  that 
the  occasions  w^ien  it  was  advanced,  were  when  masters 
were  seeking  a  remedy  in  rem,  which  has  always  been 
denied  to  them  by  the  law  of  JLngland.-  It  was  on  such 
an  application,  that  Sir  William  Scott  yielded  to  the  force 
of  the  objection  and  to  the  manifest  prospect  of  a  pro- 
hibition. In  fact,  as  Lord  Tenterden  observes,  "  it  is 
difficult  to  distinguish  the  case  of  the  master  from  that 
of  the  persons  employed  under  his  command  ;  the  nature 
and  })lace  of  the  service,  and  the  place  of  the  hiring,  are 
in  both  cases  the  same."  ^ 

Accordinjjly,  our  admiralty  courts  have  not  hesitated 
to  entertain  the  master's  suit  in  personam,^  and  also  in 
rem,  where  he  has  been  held  to  have  a  lien  on  any  fund 

in  the  ])ossession  of  the  court.^ 


I  'f 


The  Favorite,  2  Rob.  Adm.  R.  232. 

*  Ragg  V.  King,  2  Slra.  858.  Clay  v.  Sudgravr,  1  Salk.  33.  1  Lord 
Raym.  576.  Read  v.  Chapman,  2  Stra.  937.  Wilkins  v.  Carmichael, 
Doug.  101. 

'  Abbot  on  Sbip.  p;irt  \,  ch.  4,  p.  475,  edit.  1829. 

*  Willard  V.  Dorr,  3  .Mason's  R.  91.  The  George,  1  Sumner's  R.  151. 
Hammond  v.  Exxet  F.  and  M.  Ins.  Co.,  4  Mason's  R.  196.  The  Ship  Grand 
Turk,  1  Paine's  R.  78. 

»  Drinkxvater  v.  The  Freight,  <i[C.,  of  the  Spar  tan, V^-Arc'%  R.  149.  As  to 
the  master's  admission  to  sue  against  remnants,  &c.,  sec  infra. 


352  PERSONAL   STANDING  IN  THE   ADMIRALTY. 

Tlio  t(^st  of  the  li^lit  to  sue  in  the  admiralty  is  now 
considered,  witli  us,  to  embrace  two  (^Uunents  :  first, 
that  tlie  voyage  sliouhl  l)e  substantial!}  on  tide  waters, 
and  secondly,  that  tin;  services  should  be  maritime,  con- 
cerning the  business  of  commerce  and  navigation.  The 
cases  establishinf^  the  first  of  these  re((uisites  proc(;ed 
upon  the  acknowledg(^d  limits  of  the  jurisdiction,  as  con- 
fined to  that  which  is  done,  or  to  be  done,  upon  tide 
waters  ;  and  it  is  said  by  the  Supreme  Court  of  the 
United  States  that  if  the  service  was  to  be  performed 
substantially  upon  tide  waters,  although  the  commence- 
ment or  termination  of  the  voyage  may  happen  to  be  at 
some  place  beyond  the  reach  of  the  tide,  the  jurisdiction 
exists.^  On  the  other  hand,  if  the  voyage  be  substan- 
tially on  other  waters,  though  one  terminus  of  it  may  be 
on  tide  waters,  the  jurisdiction  does  not  exist.'^  In  re- 
spect to  the  nature  of  the  service  rendered,  one  learned 
judge  has  given  as  a  definition,  that  it  should  be  such  as 
contributes  to  the  preservation  of  the  vessel,  or  of  those 
employed  in  navigating  her.'  This  is  a  convenient 
description  of  those  who  have  been  admitted  to  sue  in 
the  admiralty.  But  perhaps  a  more  suitable  description 
would  be,  that  all  persons  on  board  a  vessel  engaged  in 


>    The  Thomas  Jefferson,  10  Wheaton's  R.  428. 

""  Ibid.  The  Steamboat  Orleans  v.  Phoebus,  11  Peters's  S.  C.  R.  175. 
Peyroux  v.  Howard,  7  Ibid.  324.  Thackery  v.  The  Farmer,  Gilpin's  R. 
526.      Smith  v.  The  Pekin,  Ibid.  203.      Trainer  v.  The  Superior,  Ibid.  516. 

^  Trainer  v.  The  Superior,  ut  supra.  Musicians  hired  and  employed  in 
the  service  of  a  boat  used  for  exhibiting  a  museum  of  curiosities,  though 
on  tide  waters,  are  not  within  the  admiralty  jurisdiction.  Ibid.  Btit  the 
pilot,  deck  hands,  ensfineers  and  firemen  on  board  of  a  steamboat,  navi- 
gating the  high  seas,  are  entitled  to  sue  ia  the  admiralty.  Wilson  v.  The 
Ohio,  Gilpiu's  R.  505. 


PERSONAL   ST.\NDING   IN   THE   ADMIRALTY.  353 

maritime  commerce  and  navigation,  whose  service  is  in 
the   business   and  employment  of  the  vessel,  are  within 
the  jurisdiction.^     It   should    be    remembered,   that  the 
right  to  sue  in  the  admiralty  is   wholly  independent  of 
the  question  of  a  lien.     The    proceeding   in  rem  is  to 
enforce  a  peculiar  privilege  against  the  thing  itself,  which 
is  not  always  essential  to  the  jurisdiction,  in  favor  of  the 
party,  but  which  always  gives  jurisdiction,  where  it  is  a 
maritime  lien  arising  upon  a  maritime  right  or   contract. 
The  form  of  the  contract,  whether  under  seal  or  other- 
wise, and  whatever  be  the  form   in  which  the  wages,  or 
compensation  are  to  be  earned,  does   not  aflect  the  juris- 
diction, in  this  country.     In  England,  the  Court  ol  Ad- 
miralty does  not  exercise  jurisdiction,  when  the  claim  is 
founded   on  special  and  extraordinary  contracts,  as  for 
shares  in  the  proceeds  of  a  whaling  voyage.^     But  with 
us,   if  the    suit   seeks   compensation,   in    the    nature  of 
waires,  for  services  of  a  maritime  character,  it  is  sustain- 
able  in  personam,  as  well  as,  (where  there  is  a  lien)  it  is 
in  rem.^ 

1  Take,  for  example,  the  passenger  ships  that  navigate  the  Atlantic, 
whether  propelled  by  wind  or  steam.  There  can  be  no  doubt  ihai  such 
ships  fall  williin  the  test  of  trade  and  commerce.  The  business  is  that  of 
earning  freight  by  the  carriage  of  persons,  instead  of  goods.  The  various 
servants  attached  to  the  ship,  employed  for  the  accommodation  of  passen- 
gers, are  employed  in  the  business  of  the  ship,  and  would  seem,  upon  prin- 
ciple, to  be  as  well  within  the  admiralty  jurisdiction,  as  the  purser,  the 
surgeon,  or  the  cook  and  steward. 

»  Sheppard  V.  Taylor,  5  Peiers's  S.  C.  R.  G57.  The  General  Smith,  4 
Wheaton's  R.  438.  The  BoUna  and  Cargo,  1  Gallison's  R.  75.  The  Bos- 
ton and  Cargo,  1  Sumner's  R.  341.      The  Draco,  2  Ibid.  157. 

=  The  Sydnri;  Cove,  2  Dods.  Adm.  R.  14.  Abbot  on  Shipping,  part  4, 
chap.  4,  sees.  3,  4,  5,  (i,  7. 

*  Macomber  v.  Thompson,  1  Sumner's  R.  334.     The  Crusader,  Ware's 

■lb 


354  PERSONAL  STANDING  IN  TIIR  ADINHKAI.TY. 

But  tlirn  a  contract  of  a  special  nature  is  not  coj^niz.a- 
1)1(^  ill  ilic  admiralty,  merely  because  the  consideration, 
on  one  part,  is  maritime  service.  The  compensation 
must  be  souii;ht  in  the  nature  of  waj2;es,  in  pecunid  nu- 
mcmtit  ;  and  thererorc  a  suit  for  damages,  upon  breach 
of  a  contract  "  for  good,  careful,  kind,  tender  and  paren- 
tal usage,"  in  consideration  of  marine  services,  upon  a 
s|)ecial  retainer  without  wages,  is  not  cognizable  in  the 
admiralty.' 

Contracts  under  seal  are  excluded  from  the  admiralty 
jurisdiction,  in  England."  I  am  not  aware  that  the 
question  has  ever  been  raised  in  this  country,  upon  a 
mariner's  contract.  It  is  probable  that  a  seal  would  not 
be  held  to  exclude  the  contract  from  the  admiralty  juris- 
diction, by  our  courts,  inasmuch  as  the  doctrine  with  us 
is  that  where  the  admiralty  has  jurisdiction  over  the 
subject  matter,  it  is  not  defeated  by  the  peculiar  form 
which  the  parties  have  chosen  to  give  to  their  contract  ;^ 
and  they  entertain  jurisdiction  over  charter  parties,  upon 
this  principle,  although  the  contract  is  under  seal.^ 

R.  437.  That  the  mariners  hired  on  shares  of  freight,  or  proceeds,  are  not 
partners  with  the  ship-owner,  see  ante,  pp.  74  -76. 

'  Plummer  v.  Webb,  4  Mason's  R.  380.  It  is  in  this  form,  as  part  of  the 
compensation,  that  subsistence,  expenses  of  cure  of  sickness,  and  the  three 
months'  pay  allowed  by  our  statute,  may  be  sued  for  in  the  admiralty.  As 
to  subsistence,  see  The  Madonna  D'Idra,  1  Dods.  Adm.  R.  40;  ante, 
p.  101,  el  scq.  ;  as  to  expenses  of  cure,  Harden  v.  Gordon,  2  Mason's  R.  541. 
Ante,  p.  106,  et.seq.  ;  andas  to  the  three  months' wages,  Emerson  v.  Rowland 
1  Mason's  R.  45.     Orne  v.  Townsend,  4  Ibid.  541. 

^  Abbot  on  Shipping,  part  4,  ch.  4,  sees.  3,  4,  5,  6,  7, 

^  De  Lovio  v.  Bait,  2  Gallison's  R.  398,  457. 

*  Drinhwaler  v.  The  Freight,  Sfc.  of  the  Spartan,  Ware's  R.  149,  153. 
The  Volunteer  and  Cargo,  1  Sumner's  R.  551.  See  the  case  of  De  Lovio  v. 
Boit,  2  Gallison's  R.  457,  et  seq.  for  an  examination  of  the  English  authori- 
ties at  cornmoa  law,  respecting  mariner's  contracts  under  seal. 


PERSONAL  STAxNDLN'G  US'  THE  ADMIR.\LTY.  355 

It  is  further  to  be  observed,  that  it  is  not  essential,  to 
give  a  standing  in  a  Court  of  Admiralty,  that  the  whole 
or  any  part  of  the  service  should  have  been  performed, 
for  which  the  party  seeks  compensation,  where  it  has 
not  been  rendered  through  the  fault  of  the  ow^ner  or 
master. 

In  England,  it  would  seem  that  the  admiralty  can  take 
jurisdiction  of  a  suit  for  damages  in  the  nature  of  a 
breach  of  contract.  Lord  Tenterden,  it  is  true,  observes 
of  the  statutes  of  Richard,  that  "it  is  evident,  if  the  sea- 
man's claim  to  wages  be  in  reality  founded  on  the  per- 
formance of  his  service  in  the  navigation  of  a  ship  on  the 
high  sea,  the  Court  of  Admiralty  must  have  cognizance 
of  the  claim  ;  and  on  the  other  hand  that,  if  the  claim  be 
in  reality  founded  on  the  contract  made  for  j)erformance 
of  such  service,  and  such  contract  be,  as  it  usually  is, 
made  on  shore,  or  in  a  port,  or  river,  within  the  body  of 
a  county,  the  Court  of  Admiralty  can  have  no  cogni- 
zance of  it."  ^  But  it  had  been  decided,  as  he  after- 
wards notices,  that  the  seamen  may  sue  in  the  ad- 
miralty for  wages  earned  in  rigging  and  fitting  out  the 
ship,  if  the  owners  do  not  think  fit  afterwards  to  send  the 
ship  on  the  intcMided  voyajre  f  and  in  Ireland  it  had 
been  held  that  they  may  sue  there  for  the  wages  con- 
tracted to  be  paid,  where  the  voyage  is  abandoned.^ 
There  has  been  a  very  reccnit  case  in  England,  in  w  hich 
the    mariner,   wrongfully   discharged    before    the    vessel 

'  Abbot  on  Shipping,  part  4,  ch.  4,  sec.  1,  p.  475,  edit.  1S29. 

«  Wells  V.  Osman,  2  Ld.  Raym.  1044.  6  Mod.  238.  Abbot,  ut  supra, 
sec.  2,  p.  476. 

^  Parry  v.  The  Peggy,  2  Brown's  Civ.  and  Adm.  Law,  533,  on  the 
authority  of  Wells  v.  Osman. 


356      I'F.USO.NM,   ST.\.\niN(^    IN   'I'llK    Al^MIK.M.TV  — ['OREIGNERS. 

sailed,  was  lu>ltl  entitled  to  sue  in  tlie  admiralty  for 
wages  for  the  w  hole  voyage.' 

However  this  niav  be  in  England,  in  our  Admiralty 
Courts,  thrre  can  he  no  dillieulty  in  maintaining  a  suit  lor 
damages  in  the  nature  of  a  breach  of  contract,  since  the  ju- 
risdiction with  us  is  founded  on  the  nature  of  the  contract. 
Our  courts  constantly  take  cognizance  of  suits,  in  cases 
of  a  wrongful  discharge  abroad,  decreeing  damages  in 
the  shape  of  wages  according  to  the  contract  f  and  in 
the  District  Court  of  the  United  States  for  Massachu- 
setts, a  suit  has  been  maintained  for  a  fraudulent  ship- 
ment of  seamen  for  a  fictitious  voyage,  the  Court  consid- 
ering the  defendant  estopj)ed  to  deny  the  reality  of  the 
voyage,  and  awarding  damages  in  the  shape  of  wages.^ 

It  belongs  to  the  subject  now  under  consid(;ration,  to 
state  the  doctrine  and  practice  of  courts  of  admiralty,  in 
respect  to  suits  between  foreigners.  "  The  jurisdiction 
of  the  admiralty,  in  matters  of  contract,"  it  is  said,  "de- 
pends not  on  the  character  of  the  parties,  but  on  the 
character  of  the  contract,  whether  maritime  or  not.  When 
once  its  jurisdiction,  therefore,  attaches  rightfully  on  the 
subject  matter,  it  will  exercise  it  conformably  with  the 
law  of  nations,  or  the  lex  loci  contractus,  as  the  case  may 


'  The  City  of  London,  cited  at  length,  ante,  p.  299.  Dr.  Lushington  is 
reported  to  have  said,  thai,  whether  the  mariner,  when  the  voyage  is  aban- 
doned, is  entitled  to  come  into  the  admiralty  and  sue,  has  never  been  agi- 
tated and  decided.  The  cases  above  referred  to  show  how  nearly  it  has 
been  decided.  —  I  have  relied  for  these  recent  cases  in  the  High  Court  of 
Admiralty  upon  the  reports  made  in  the  Monthly  Law  Magazine.  Itseems 
that  they  are  sufficiently  accurate  to  be  cited  for  some  purposes  in  that  court 
itself.     See  vol.  x.  No.  38,  p.  139,  (March,  1841.) 

=*  Ante,  pp.  296,  297,  299,  300,  301. 

'  Stewart's  Case,  cited  in  Dunlap's  Adm.  Practice,  p.  53. 


PERSOiNAL   STANDING  L\  THE  ADMIRALTY  — FOREIGNERS.      357 

require."^  This  general  description  of  its  functions  — 
intended  only  for  a  general  description — obviously  re- 
quires some  further  explanation  ;  for  it  cannot  be  in- 
tended that  the  admiralty  will  always  take  cognizance 
of  a  contract,  though  maritime,  where  the  merely  mu- 
nicipal regulations  of  the  place  where  the  contract  was 
made  are  to  be  enforced,  without  first  founding  the  juris- 
diction upon  principles  of  the  general  law.  A  writer  on 
the  admiralty  jurisdiction  has  pointed  out  this  distinction 
as  to  suits  between  foreigners.  "  It  must  depend,"  he  says, 
"  on  the  nature  of  the  question.  If  it  arises  from  the  par- 
ticular institutions  of  any  country,  to  be  applied  and  con- 
strued and  explained,  by  the  particular  rules  of  that  coun- 
try, it  will  not  be  entertained.  Such  is  a  question  arising 
upon  the  contractsof  mariners,  who  will  be  remitted  to  their 
own  forum." ^  This  general  language  needs  qualification. 
Questions  arising  upon  the  contracts  of  mariners  are  not  al- 
ways such  questions  as  those  which  the  writer  describes, 
and  accordingly  are  not  always  remitted  to  their  domes- 
tic forum.  Wages  of  mariners  are  due  by  the  general 
maritime  law,  however  modified  by  the  particular  regula- 
tions of  different  countries.^  When,  therefore,  the  wages 
become  due  in  the  foreign  country  and  all  that  is  sought 
to  be  enforced  is  the  payment  of  what  is  due  by  their  con- 
tract, the  courts  of  such  foreign  country  may  admit  mariners 
to  sue  and  enforce  their  claims;  and  will  then  proceed  to 
ascertain  by  the  lex  loci  what  is  due  by  the  contract. 

Thus,  in  England,  the  first  case  of  the  kind  reported, 
was  that  of  c(;rtain  American  seamen  discharged  there, 

'   The  Jerusalem,  2  Gallison's  R.  191,  200. 

•  2  Brown's  Civ.  and  Adm.  Law,  119. 

*  The  Courtney,  Edwards's  Adm.  R.  241. 


3o8      rr.USO.NAL   standing   in   TIII-.   ADMIKALTV  — I'OKEIGNERS. 

and  who  siuul  ai^aiiist  the  master  for  tin  ir  \vai!;cs  due  ac- 
cording to  tlie  contract,  and  also  lor  the  tln(>c  months' 
wages  required  to  be  paid  in  such  cases  by  the  Act  of 
Congress.  Tiie  court  admitted  the  libel  for  the  wages 
under  the  contract,  vvitli  the  consent  of  the  representative 
of  the  United  States,  but  as  the  statute  requiring  the  three 
months'  additional  pay  was  only  ])rinted  on  the  back  of  the 
articles  and  not  referred  to  therein,  it  could  not  be  taken 
to  be  a  part  of  the  contract,  and  being  a  merely  munici- 
pal regulation,  the  court  had  no  jurisdiction  to  enforce  it.^ 
The  next  case  was  that  of  certain  Greek  seamen,  whose 
vessel  had  been  arrested  at  the  suit  of  a  bottomry  bond 
holder  ;  wages  and  subsistence  in  England,  until  they 
could  return  home,  were  decreed  against  the  proceeds  of 
the  shij),  upon  the  ground  that  such  subsistence  was  to 
be  deemed  part  of  their  contract.-  The  next  case  was 
that  of  a  foreign  mate  of  an  enemy  ship,  but  which  came 
to  England  under  a  British  license  :  wages  were  decreed 
against  the  shlp.^     The  next  two  cases  were  similar  in 


'   The  Courtneij,  Edwards's  Adm.  R.  241. 

'  The  Madonna  D'ldra,  1  Dods.  Adm.  R.  37,  41.  The  court  sought  to 
distinguish  this  case  from  that  of  the  American  seamen.  In  the  case  of 
the  Greek  seamen,  the  court  received  and  relied  upon  evidence  that  sub- 
sistence was  required  by  the  laws  of  their  own  country,  and  so  was  to  be 
deemed  part  of  the  contract.  Of  the  other  case,  the  court  say,  "  the  Ameri- 
can seamen  did  not  attempt  to  establish  their  right,  as  due  to  them  by  the 
universal  usage  and  custom  of  their  country,  or  as  forming  part  of  the  con- 
tract under  which  they  sailed,  but  upon  the  ground  of  a  statute  lately  in- 
troduced." (lb.  p.  41.)  The  learned  judge,  in  distinguishing  the  cases, 
did  not  do  justice  to  the  real  distinctions.  The  libel  of  the  American  sea- 
men prayed  the  court  to  decree  the  three  monllis'  wages  to  be  paid  to  the 
American  consul,  and  this  would  have  been  merely  an  enforcement  of  a 
municipal  regulation. 

'  The  Vrow  Mina,  1  Dods.  Adm.  R.  234. 


PERSONAL  STA-NDING  IN  THE  ADMIRALTY  — FOREIGNERS.     359 

features  and  result.^  Then  followed  a  case  of  certain 
Dutch  seamen,  whose  vessel  in  England  had  been  as- 
signed over  by  the  master  to  British  creditors.  The 
court  considered  the  contract  at  an  end,  and  that  under 
such  circumstances  the  seamen  might  proceed,  on  the 
general  law.  to  establish  their  claims  against  the  ship  it- 
self.- A  similar  case  of  breach  of  contract  was  more  re- 
cently made  the  foundation  of  proceedings  against  the 
ship.^" 

From  all  these  cases,  it  appears  to  be  the  practice  in 
England  not  to  proceed  to  entertain  Jurisdiction,  without 
the  consent  of  the  representative  of  the  foreign  govern- 
ment to  which  the  parties  belong. 

In  this  country,  our  admiralty  courts  have  ordinarily 
exercised  Jurisdiction  upon  the  same  principles.  Where 
the  voyage  is  terminated,  either  by  its  completion  or 
abandonment,  or  there  is  a  dissolution  of  the  contract  by 
the  wrongful  act  of  the  owner  or  master,  the  suits  are 
entertained,  and  the  court  will  notice  the  lex  loci  to  as- 
certain the  contract ;  but  where  the  voyage  has  not  ter- 
minated, or  the  seamen  have  bound  themselves'to  abide 
by  the  decisions  of  their  own  tribunals,  they  are  remitted 
to  their  own  forum.'* 

'   The  Frederick,  1  Dods.  Adm.  R.  266.     The  Maria  Theresa,  Ibid.  303. 

*  The  Wilhelm  Frederick,  1  liagg.  Adm.  R.  138. 
»   The  Margaret,  3  Hag?.  Adm.  R.  238. 

*  Ellison  V.  The  Bellona,  Bee's  Adm.  R.  106,  112.  Aertsrn  v.  The  Au- 
rora, Ibid.  IGl.  Thompson  v.  The  Nancy,  Ibid.  217.  Wellendsm  v.  The 
Forsohet,  1  Peters's  Adm.  R.  197.  Moran  v.  Baudin,  2  Ibid.  415.  Weiburgv. 
The  St.  Olojf,  Ibid.  428.  The  Jerusalem,  2  Gallison's  R.  198.  The  courts 
of  common  law  have  proceeded  upon  ihe  same  principles,  2  East's  R.  175. 
Johnson  V.  Dallon,  1  Cowen's  R.  54.3.  As  to  the  admiralty  jurisdiction  in 
other  case«,  between  foreigners,  see  Mason  v.  Thi  Bluircau,  2  Craiich's  R. 
241 1.    Hudson  v.  (Jucslier,  4  Ibid.  293.     The  Antelope,  9  Wheat.  R.66.    The 


360  ADMIRALTY  JURISDICTION  IN   PERSONAM. 

Passengers,  for  some  pur[)oses,  have  a  personal  standing 
in  the  adiniraltv.  By  the  statute  of  the  United  States 
regiihitiiii;  i)assenger  ships  and  vessels,  the  master,  who 
has  not  furnished  his  vessel  as  required  by  law,  and  is  in 
consequence  obliged  to  put  the  passengers  on  short  allow- 
ance, is  made  liable  to  pay  to  each  of  them  "  the  sum  of 
three  dollars  for  each  and  every  day  they  may  have  been 
put  on  such  short  allowance  ;  to  be  recovered  in  the  same 
manner  as  seamen's  wages  are  or  may  be  recovered." ' 
This  clause  of  the  statute  does  not  in  terms  include  the 
admiralty  jurisdiction,  but  the  meaning  of  it  is  presumed 
to  be,  that  the  per  diem  allowance  is  recoverable  there 
by  a  libel  for  damages  in  the  nature  of  a  breach  of  con- 
tract, setting  forth  the  statute  provisions.  So  too,  in 
cases  of  torts  to  the  person  of  a  passenger,  including 
consequential  damages  for  immodest,  harsh,  or  oppressive 
deportment  towards  them,  the  admiralty  has  jurisdiction.^ 

2.  Jurisdiction  in  personam. 

The  jurisdiction  of  the  admiralty  in  personal  suits  em- 
braces those  founded  in  contract  and  in  tort.  I  have 
laid  down  the  general  doctrine  that  all  the  persons  em- 
ployed in  the  business  of  a  vessel  engaged  in  maritime 
trade  and  navigation  are  entitled  to  come  into  this  juris- 
diction and  seek  their  remedy  for  breach  of  contract. 
The  master,  or  owner,  is  cited  personally  to  answer  to 


Calypso,  2  Hagg-.  Adtn.  R.  209.  The  Salacia,  Ibid.  262.  The  See  Renter, 
1  Dods.  Adm.  R.  22.  The  Ttvo  Friends,!  Rob.  Adm.  R.  271.  The  Prince 
Frederick,  2  Dods.  541.  Schooner  Exchange  v.  APFaddun,  2  Cranch's  R.  115. 
The  Experiment,  2  Dods.  38.     The  Jerusalem,  2  Gallison's  R.  191. 

>  Act  U.  S.  2d  March,  1819,  ch.  170,  sec.  3. 

^  Chamberlain  v.  Chandler,  3  Mason's  R.  242.  The  RucUrs,  4  Rob. 
Adm.  R.  73. 


ADMIRALTY  JURLSDICTION   IN  PERSONAM.  361 

the  party  complaining,  in  a  suit  called  in  the  technical 
language  of  the  admiralty,  "  a  cause  of  subtraction  of 
wages,"  or  "  a  cause  of  pilotage,"  as  the  case  may  be. 
The  right  thus  to  proceed  is  wholly  independent  of  the 
question  of  a  lien.  No  lien  is  sought  to  be  enforced,  but 
the  party  is  cited  under  a  personal  liability.^  This  mode 
of  proceeding  is  said  to  have  been  the  original  and  an- 
cient form  of  exercising  the  jurisdiction  in  all  cases  ;^  it 
is  familiarly  and  constantly  used  in  the  modern  practice,^ 
and  was  equally  well  known  in  the  admiralty  jurisdiction, 
as  held  and  practised  in  this  country  before  the  Constitu- 
tion of  the  United  States  was  established.^ 

In  cases  of  tort,  the  proceeding  is  also  in  personam  for 
damages,  very  frequently  used,  and  known  from  time  im- 
memorial. The  competency  of  the  Court  of  Admiralty 
to  award  damages  for  personal  wrongs  done  upon  the 
high  seas,  has  always  been  admitted  in  England,^  is  con- 
stantly practised  thcre^  and  is  equally  familiar  in  this 
country.'  But  in  these  cnses,  the  subject  matter  of  course 
is  not  the  criterion  of  the  lUrisdiction,  but  the  place  where 
the  act  is  done.     The  jurisdiction  includes  the  high  seas, 


*  2  Brown's  Civ.  and  Adm,  Law,  432. 

*  The  Boston  and  Cargo,  1  Sumner's  R.  341. 

'  Olii  r  V.  Alexander,  6  Peters's  S.  C.  R.  143.  Macomber  v.  Thompson, 
1  Sumner's  R.  384.  Hammond  v.  Essex  Fire  and  Mar.  Ins.  Co.,  4  Mason's 
R.  196.     Bronde  v.  Haven,  Gilpin's  R.  592. 

*  See  Appendix  T. 

*  2  Brown's  Civ.  and  Adm.  Law,  108.  3  Blaclistone's  Comm.  106.  Sir 
L.  Jenkins's  works,  vol.  ii,  p.  774.     Lc  Caiix  v.  Eden,  Doug.  R.  108. 

"  r/ie  Afrincourt,  1  Hagg.  Adm.  R.  271.  The  Loicthtr  Castle,  Ibid.  384, 
The  Centurion,  Ibid.  161.      The  Enchantress,  Ibid.  395. 

'  Chamberlain  v.  Chandler,  3  Mason,  242.  Thomas  v.  Lane,  2  Sumner's 
R.  1 .  Thome  v.  While,  1  Peters's  Adm.  R.  172,  174.  Hutchinson  v.  Coombs, 
Ware's  R.  65,  and  oiher  cases  cited,  ante,  p.  337,  333. 

46 


362  ADMIRALTV  .11  RISDICTION  IN  PERSONAM. 

or  opoii  sea  Aviilioiit  the  body  of  a  county,  botli  in  Enj;- 
land  and  in  tliis  country.^  Waters  within  tlie  ebb  and 
flow  of  the  tid(%  which  lie  within  a  ])ort,  or  body  of  a 
county,  of  the  realm,  are  not  in  England  within  the  ad- 
miralty jurisdiction.-  But  in  this  country,  all  tide  waters, 
though  within  the  body  of  a  county,  are  within  the  ad- 
miralty jurisdiction,  and  torts  committed  upon  such  waters 
are  cognizable  there.^ 

It  seems,  also,  that  torts  committed  on  tide  waters 
within  foreign  ports,  are  within  the  admiralty  jurisdic- 
tion.^ 

It  is  said  by  the  learned  Dr.  Browne,  that  "  there  can 
be  no  variety  in  the  subject  matter  of  torts.  They  can- 
not, like  contracts,  relate  some  to  terrene  and  some  to 
marine  affairs.  Nor  have  a  double  aspect  like  them, 
which,  though  made  on  land,  may  relate  entirely  to  the 
sea.'*'  But  a  tort  may  have  its  inception  upon  the  land 
and  be  consummated  on  the  sea.  Cases  of  this  kind  are 
excluded  from  the  admiralty  jurisdiction  in  England ; 
but  they  are  not  with  us,  it  being  held,  that  where  the 
tort  is  one  continued  act,  though  commencing  on  the 

'  2  Brown's  Civ.  and  Adtn.  Law,  lOS,  109,  110.  4  Inst.  134.  Lindo  v. 
Rodney,  Doug.  613.     3  Swanst.  R.  605,  606. 

*  2  Brown's  Civ.  and  Adm.  Law,  HI.  Vellhasonv.  Ormshj,  2  Term  R. 
315.     The  Nicolaas  Witzen,  3  Hagg.  Adra.  R.  369. 

'  Judic.  Act  U.  S.  1789,  sec.  9.  United  States  v.  The  Schooner  Sally,  2 
Cranch's  R.  406.  United  States  v.  The  Schooner  Betsey,  4  Ibid.  443.  The 
Samuel,  1  Wheaton's  R.  9.  The  Octavia,  1  Ibid.  20.  The  Sarah,  8  Wheat. 
391.  Peyroux  v.  Harvard,  7  Peters's  S.  C.  R.  324.  Smith  v.  The  Pelan, 
Gilpin's  R.  203.  Wilson  v.  The  Ohio,  Ibid.  505.  De  Lovio  v.  Boit,  2  Gal- 
lison's  R.  398.  The  Jerusalem,  2  Ibid.  347.  Sancry's  Case,  U.  S.  Dist. 
Court,  Mass.,  March  T.  1832,  cited  Dunlap's  Adm.  Prac.  51. 

*  Thomas  y.  Lane,  2  Sumner's  R.  1.     The  Apollon,  9  Wheaton's  R.  363. 

*  2  Brown's  Civ.  and  Adm.  Law,  p.  110. 


ADMIRALTY  JURISDICTION  LM  REM.  363 

land,  the  admiralty  has  jurisdiction  over  the  whole  mat- 
ter.^ 

3.  Jurisdiction  in  rem. 

Proceedings  in  rem  take  place  at  the  suit  of  the  party 
having  an  hypothecary  interest  in  the  thing  proceeded 
against,  ordinarily  styled  a  lien."  The  admiralty  juris- 
diction in  these  cases  and  in  this  form  of  proceeding 
where  the  lien  is  of  a  maritime  nature,  has  rarely  been 
questioned,  and  the  fact  that  it  is  the  only  court  which 
can  enforce  a  maritime  hypothecation,  by  proceeding  di- 
rectly against  the  thing  itself,  has  often  been  assigned  as 
the  ground  for  permission  to  sue  at  all.  But  we  have 
seen  that  a  personal  standing  may  be  acquired  on  other 
grounds ;  although,  where  there  exists  a  maritime  lien, 
in  favor  of  the  party,  he  may  always  come  into  the  ad- 
miralty to  enforce  it.^  Hence  all  the  persons  to  whom 
the  maritime  law  gives  a  lien  for  their  services  on  ship- 
board, may  have  the  aid  of  this  jurisdiction.''  We  have 
seen  that  the  master  has,  for  reasons  of  policy,  no  lien  on 
the  vessel  for  his  wages,  and  that  it  is  from  this  exercise 
of  the  jurisdiction  tliat  he  is  excluded.^ 

The  distinction  taken  in  the  cases  where  a  mate  has 
succetjded  to  the  office  of  master  during  the  voyage,  by 
treatin";  him  as  a  mate  actinjr  as  master,  has  been  taken 
with  reference  to  tiie  question  of  a  lien  and  the  right  to 
proceed  m  rem.     It  is  not  necessary  to  resort  to  this  dis- 

'  Steele  V.  Thachrr,  Ware's  R.  91.    Plummcr  v.  Wehb,  4  Mason's  R.  380. 
Skcricood  V.  Hall,  3  Sumner's  R.  127. 

*  Ante,  p.  315,  ct  scrj. 

'  The  Draco,  2  Sumner's  R.  157. 

*  As  to  the  lien  in  mariners  cases,  see  ante.    As  to  the  lien  for  pilotage, 
The  Anne,  1  Mason's  R.  508.     Hubart  v.  Drogan,  10  Peters's  S    C.  R.  108. 

'  Ante,  p.  350,  351. 


361  ADMIRALTY  JURISDICTION  IN  REM. 

tiiiction  to  give  a  iij2,ljt  to  sue  in  personam  ;  but  wliero 
the  distiiu'tion  attiiallv  exists,  the  right  to  proceed  against 
the  sliij)  for  tlie  wages  due  in  the  eapneitj  of  mate  still 
remains,  leaving  the  residue  of  his  compensation,  as  mas- 
ter, to  be  recovered  at  common  law.^ 

There  is  also  a  qualified  proceeding  in  rem,  which 
courts  of  admiralty  allow  to  the  master,  by  petition 
against  remnants  and  surplus  remaining  in  the  registry, 
after  sale  of  the  ship  at  the  suit  of  other  parties,  when 
there  are  no  adverse  interests  opposing  it.^ 

The  lien  and  proceeding  in  rem  for  wages,  according 
to  the  course  of  courts  of  admiralty,  are  expressly  recog- 
nised and  given  by  the  statute  for  the  regulation  of  sea- 
men in  the  merchant  service  ;  ^  and  for  shares  offish  taken 
in  the  bank  and  other  cod  fisheiies,  by  the  statute  for  the 
regulation  of  persons  in  those  fisheries.''  In  the  whale 
fishery,  the  Jurisdiction  remains  grounded  on  the  lien  by 
the  general  law,  and  the  general  Jurisdiction  of  the  court. 
Treated  as  in  all  respects  in  the  nature  of  wages,  the 
shares  in  these  cases  doubtless  give  a  lien  on  the  vessel 
and  the  proceeds  of  the  fish  taken.^ 

The  lien  for  wages,  it  has  been  seen,  attaches  to  the 
ship,  to  what  is  substituted  for  it,  and  to  its  proceeds, 
when  sold.  The  same  is  true  of  the  freight.  The  ad- 
miralty Jurisdiction  is  exerted  over  such  proceeds,  or  sub- 

>   The  Favorite,  2  Rob.  Adra.  R.  232.     The  George,  1  Sumner's  R.  151, 
157. 

*  The  Favorite,  2  Rob.  Adm.  R.  232.     Gardner  v.  Ship  New  Jersey,  1 
Peters's  Adtn.R.  223. 

=»  Act.  U.  S.  20th  July,  1790,  sec.  6. 

*  Act  U.  S.  19th  June,  1813,  sec.  2.     The  lien  in  the  cod  fisheries  exists 
for  six  months  against  the  vessel,  after  the  fish  have  been  sold.     Ibid. 

*  Ante,  p.  75. 


COMMON  LAW  JURISDICTION.  365 

stituted  fund,  by  first  founding  the  jurisdiction  in  the  lien, 
and  then  by  personal  monition  calling  on  the  parties 
holding  the  proceeds  to  pay  them  into  court. ^ 

Such  is  the  general  outline  of  the  admiralty  jurisdic- 
tion in  mariners'  cases.-  It  remains  to  add  a  peculiarity 
of  this  jurisdiction,  of  ancient  practice,  confirmed  by 
statute,  and  applicable  to  all  its  forms  of  proceeding,  that 
the  seamen  may  unite  in  one  suit  the  claims  founded  on 
their  several  distinct  contracts.  It  is  a  privilege  granted 
to  mariners  only,  and  is  confined  strictly  to  demands  for 
wages.^ 

II.   Of  the  Common  Law  Jurisdiction. 

The  courts  of  common  law  have  always  exercised  a 
concurrent  jurisdiction  over  mariners'  contracts,''  and  al- 
though these  causes  arc  well  settled  in  this  country  to 
be,  rightfully,  causes  of  admiralty  and  maritime  jurisdic- 
tion, yet  this  latter  jurisdiction  is  not  exclusive,  the  Ju- 
diciary Act  of  the  United  States,  as  well  as  the  statutes 
rcffulatins  seamen  in  the  merchant  service  and  the  fishe- 
ries,  having  saved  the  right  of  a  common  law  remedy, 
where  the  common  law  is  competent  to  give  it.^ 

Courts  of  common  law  are  not  competent  to  give  a 
remedy  in  rem,  or  to  enforce  directly  the  mariner's  lien 

'   Shrppard  V.  Taylor,  5  Peters's  S.  C.  R.  G75.     See  also  ante,  p.  317. 

*  It  would  lead  to  too  rninute  and  extended  inquiries,  to  go  into  the  Ad- 
miralty Practice,  in  this  work.  The  excellent  work  of  the  late  Mr.  Dunlap, 
Hall's  Admiralty  Practice,  the  Reports  of  Judge  Ware,  and  other  sources, 
familiar  to  the  reader,  supply  tiie  re(|uisite  materials  for  practical  inquiries. 

•^  Oliver  V.  Alexander,  G  Peters's  S.  C.  R.  143,  (where  the  practice,  &:c., 
are  explained).    Acts  U.  S.  20th  July,  1790,  sec.  6  ;  19lh  June,  1813,  sec.  2. 

"   l>r  f.nrii,  V.  lioii,  2  Gallison's  R.  '398— 416,  passim. 

»  Acts  U.  S.  24ih  Sept.,  1789,  ch.  20,  sec.  9;  20th  July,  1790,  ch.  56, 
sec.  6  ;  ITMh  June,  1813,  ch.  2,  sec.  2. 


3G6  COMMON   LAW  JURISDICTION. 

upon  tlic  vessel,  and  accordingly  the  remedy  in  this  ju- 
risdiction is  con  lined  to  a  personal  suit  against  the  mas- 
ter, or  owner,  upon  tlie  contract.  Tiie  form  of  action 
depends  upon  the  nature  of  the  contract.  If  it  be  in  the 
usual  form  of  liiring,  and  not  under  seal,  the  remedy 
is  by  an  action  of  debt,  or  assumpsit.  If  the  instru- 
ment be  under  seal,  then  an  action  of  debt  or  covenant 
must  be  brought  upon  it.  But  it  has  been  held  that 
delivenj,  as  a  deed,  is  necessary,  to  require  the  technical 
remedy  appropriate  to  an  instrument  under  seal,  and  that 
where  a  mariner's  contract  had  a  seal  affixed  to  his  name, 
and  it  did  not  appear  that .  the  instrument  had  been  or 
was  intended  to  be  delivered  as  a  deed,  an  action  upon 
the  case  would  lie.^  So  too,  if  the  instrument  be  not 
sealed  by  the  master,  and  is  only  sealed  by  the  mari- 
ners, assumpsit  lies  upon  it  for  their  wages  against  the 
master.^ 

It  seems  to  be  the  doctrine  of  common  law  courts  in 
this  country,  that  a  mariner  may  maintain  general  in- 
debitatus assumpsit  to  recover  his  pro  rata  wages,  or  the 
whole  wages  for  the  voyage,  when  tortiously  dismissed 
by  the  master  before  the  voyage  is  ended,  or  when  it  is 
broken  up  by  the  act  of  the  owner,  or  master,  although 
there  is  a  stipulation  in  the  contract  that  the  wages  are 
not  to  be  paid  till  the  end  of  the  voyage :  and  that  a 
special  action  on  the  case  is  not  necessary.'* 

*  Clement  v.  Gunhouse,  5  Esp.  83. 

*  Sutherland  v.  Lishnan,  3  Ibid.  42. 

'  Hoyt  V.  Wildfire,  3  Johns.  R.  518.  Ward  v.  Ames,  9  Johns.  R.  138. 
Sullivan  V.  Morgan,  11  Ibid.  66.  Brooks  v.  Dorr,  2  Mass.  R.  39.  Lus- 
comb  V.  Prince,  12  Ibid.  576.  Sigard  v.  Roberts,  3  Esp.  R.  71.  Sed  vide 
Ilulle  V.  Heightman,  2  East's  R.  145. 


,     COMMON  LAW  JURISDICTION.  3G7 

In  cases  of  tort,  committed  upon  the  high  seas, 
however  it  might  have  been  formerly,  the  common  law 
has  concurrent  jurisdiction.  The  form  of  the  remedy 
is  by  an  action  of  trespass,  or  a  special  action  on  the 
case.^ 

»  1  Chitty's  Plead.  152,  191.  Watson  v.  Christie,  3  Bos.  and  Pul.  224. 
Sampson  v.  S/nith,  15  Mass.  R.  355.  Broum  v.  Hoicard,  15  Johns.  R.  119. 
Ward  V.  Ames^  9  Ibid.  138. 


APPENDIX 


47 


APPENDIX 


I. 

EXTRACTS  FROM  THE  RECORDS  OF  THE  VICE  AD- 
MIRALTY COURT  FOR  THE  PROVINCE  OF  MASSA- 
CHUSETTS BAY. 


[The  volume  of  records,  from  wliich  these  cases  are  extracted,  is  deposited  in 
the  archives  of  the  District  Court  of  the  United  States  for  Massachusetts  District. 
It  is  the  only  volume  of  the  records  of  the  Provincial  Vice  Admiralty  Court 
known  to  be  in  existence  here.  There  is  a  tradition  that  the  residue  of  its  records 
were  carried  to  Halifax,  by  the  officers  of  the  crown,  when  the  British  evacuated 
Boston.  If  in  the  possession  of  the  British  government,  their  restoration  to  thig 
country  would  be  of  great  service  to  a  question  which  is  agitated  in  our  jurispru- 
dence—  what  was  the  admiralty  jurisdiction,  on  the  instance  side,  settled  and  in 
practice  here,  before  the  revolution.] 

At  a  Court  of  Admiralty  holdcn  at  Boston  before  the  Hono'hle.  ) 
Robt.  Auchmuty  Esq!  Judge  of  said  Court.     April  15,  1710.  3 

1740.  Ajjril  11.  Francis  de  Quitteville  Mariner  e.xhibited  a  libel 
agt.  Andrew  Woodbury  Mariner  for  an  assault  upon  the  body  of  the 
Plff.  at  the  bay  of  Honduras  upon  the  open  sea  on  board  ye  Ship 
King  George  as  p  Libel  on  file  more  fully  sets  forth  ;  the  case  was 
heard  on  the  14th  currt.  and  on  the  l.">th  currt.  aforcsd.  his  Honor 
the  Judge  gave  the  following  decree,  viz. 

I  have  duly  considered  this  case  together  wth.  the  proofs  and  am 
of  opinion  the  mutinous  behavior  of  abt.  fourteen  of  the  crew  ought 
severely  to  be  puni.^hcd,  yet  not  in  the  metliod  and  manner  used  by 
the  Deft,  but  it  appears  clear  to  me  from  the  whole  of  the  evidence 
that  the  Propt.  shared  no  part  iji  that  mutiny  and  that  the  Deft,  im- 
aging ho  was  an  actor  with  them  beat  him  witii  uncommon  severity 
wh.  I)y  MO  means  is  justifiable,  the  Deft,  mistaking  his  man  is  easily 
accounted  for  because  the  disturbance  happened  in  the  night,  there 
was  a  number  of  these  refractory  men  &.  the  Propt.  was  by  violence 


372  AFPKNDIX  1. 

shoved  on  the  Deft,  these  things  in  my  opinion  tho  they  will  not 
amount  to  an  entire  justification,  greatly  ought  to  mitigate  in  damage, 
therefore  upon  the  whole  I  decree  the  Deft,  to  pay  unto  ye  propt. 
five  Pounds  in  bills  of  Public  Credit  and  the  costs  of  this  Court. 

lloBT.   AUCIIMUTY  Judgf.  AcllJ. 

Exmn'd  p.  ioMN  Payne  D.  Rgr. 

1740.  Apl.  9.  Francis  Pulcifer  exhibitd.  a  Libel  agt.  Francis 
Cogswell  late  owner  of  ye  Schooner  Speedwell  for  Wages  &.c.  wh. 
was  agreed. 

Att.  John  Payne  D.  Rr. 

1740.  May  39.  Thomas  Darcy  Bowling  mariner  Exhibited  a 
Libel  against  William  Clark,  Late  Master  of  the  Ship  Seaflowr.  &:. 
agt.  sd.  ship  for  wages  and  liberation  as  p  Libel  on  file  more  fully 
sets  forth  ;  the  case  was  agreed. 

Att.  John  Payne  D.  Rcgr. 


"ft" 


At  a  Court  of  Admiralty  ITolden  at  Boston  before  the  ITonoble.  "i 
Robt.  Auchmuly  Esq.  Judge  of  said  Court.     Sept.  10,  ]740.  5 

1740.  Sept.  6.  Timothy  Wyer  of  the  Island  of  Nantucket  mari- 
ner, exhibited  a  libel  agt.  William  Henry  Master  of  the  Ship  Polly 
for  Piloting  sd.  Ship  from  Nantucket  to  Boston  as  p.  Libel  on  file 
more  fully  sets  forth,  the  case  was  heard  on  ye  9th  currt.  and  on  the 
10th  currt.  aforesd.  the  Judge  gave  the  following  Decree  viz. 

I  have  considered  this  Libel  and  am  of  opinion  to  do  justice 
therein  the  only  evidence  to  be  relied  on  are  the  Testimonies  of 
Capt.  Cofiin  &  Capt.  Brock  who  saw  ye  situation  of  the  Ship  when 
the  signal  of  distress  was  given  and  both  gentlemn.  of  experience 
«S6  knowledge  in  respect  to  the  difllculty  &.  hazard  as  well  as  the 
skill  in  Piloting  such  a  Vessel  over  Nantucket  Shoals  to  Boston  they 
also  especially  Mr.  Brock  are  of  opinion  that  the  sum  of  six  pounds 
for  the  Whale  Boat  &  crew  in  carrying  the  Pilot  on  Board  consider- 
in<T  ye  distance  &,  hazard  was  not  excessive  wh.  reduces  the  bare 
Pilotage  to  seventeen  pounds  and  upon  the  whole  taking  the  case 
with  all  its  circumstances  the  Ships  being  Leaky  full  loaden  drawing 
better  than  twelve  feet  water,  the  difficulty  of  getting  hands  and 
reachino-  the  vessell   in  the  night  I  cant  appreliend  ye  agreemt.  en- 


APPENDIX  I.  373 

tered  into  by  the  parties  to  be  extorted  —  It  must  not  be  a  small 
matter  more  than  the  service  is  worth  that  ought  to  set  such  awree- 
ment  aside  but  where  the  agreement  is  pretty  near  the  value  of  the 
Labour  it  ought  to  be  preserved  and  I  would  not  be  understood  to 
establish  in  this  Court  any  excessive  sum  for  Piloting  neither  would 
I  by  so  great  a  reduction  discourage  persons  skilled  from  giving  their 
ready  assistance.  I  believe  this  case  will  not  settle  any  rule  being 
in  fiict  or  circumstances  different  from  the  Common  Cases  and  there- 
fore not  to  be  measured  by  the  prices  sworn  to  by  the  Merchts.  in  ye 
ordinary  cases  and  inasmuch  as  the  Propt.  declined  taking  ye  charge 
of  the  Ship  from  the  Light  House  to  Boston  so  that  a  Pilot  was  nec- 
essarily employed  for  that  purpose  I  order  the  sum  of  four  Pounds 
to  be  deducted  out  of  the  sum  demanded  to  pay  that  Pilot.  The 
remaining  sum  of  nineteen  Pounds  I  decree  the  Propt.  together 
with  his  costs  of  this  court. 

RoBT.  AucHMUTY  Judge  Ady. 
Exmnd.  p.  John  Payne  D.  Rgr. 

1740.  Sept.  15.  James  Moore  of  Londonderry  Weaver  exhibited 
a  Libel  on  behalf  of  his  son  John  Moore  a  minor  for  wages  against 
William  Henry  Master  of  the  Ship  Polly  wh.  was  agreed. 

Atts.  John  Payne  1).  Rcgr. 

At  a  Court  of  Admiralty  holdcn  at  Boston  before  the  Ilonblc.  ) 
Robt.  Auchmuty  Esq.  Judge  of  sd  Court.     18  Nov.  1740.     5 

1740.  iVov.  1.5.  Thomas  Camell  Mariner  exhibited  a  Libel 
against  Ship  Eliza,  Lewis  Turner  Master  &  agt.  said  Turner  for 
wages  and  liberation  he  being  incapacitated  to  proceed  the  voyage 
by  reason  of  sickness  &:c.  as  p.  Libel  on  file  more  fully  sets  forth, 
the  case  was  fully  heard  on  the  18th  currt.  aforcsd.  at  which  time 
his  Honor  the  Judire  fjave  the  followinrr  Decree  viz. 

I  have  considered  this  Libel  and  evidences  produced  and  am  of 
opinion  the  Propt.  is  not  in  Health  suitable  to  prosecute  the  voyage 
without  cndanfjering  his  life  and  therefore  I  discharfre  him  from  the 
same  and  as  to  the  demand  of  wages  when  I  con.sidcr  that  hands 
present  themselves  where  the  Heft.  Shipped  the  Propt.  to  come 
hither  gratis  provided  they  can  be  secured  from  being  pressed  it 
must  be  a  ]os.s  to  the  deft,  in  having  the  IMf  liberated  after  the  chariie 


'Ml  AlTRiVniX  I. 

tlio  Deft,  was  at  in  securing  tlie  Propt.  as  afoisd.  and  wlicn  I  con- 
sider the  distemper  tli;>t  now  is  tlic  cause  of  liberation  was  contracted 
l>v  (lie  Propl's  sin  \  lollv  and  lli;it  tiuly  l)y  liis  own  act  lie  lias 
disabled  liitnscll'  from  perforniinf:;  his  contract.  I  can't  in  justice 
give  the  Propt.  the  full  of  his  wages  and  therefore  as  the  case 
stands  circumstanced  I  decree  the  Propt.  only  one  months  wages 
furtlior  than  the  months  wages  advanced — and  ye  remaining 
wages  declare  to  be  detained  by  ye  deft,  to  make  good  the  damage 
he  may  sustain  by  reason  of  ye  I'ropts.  disabling  himself  from 
performing  ye  contract,  yc  Deft,  thereout  to  pay  ye  costs  of  this 
Court. 

RonT.  AuciTMUTY  Judge  A(hj. 
E.xmnd.  p.  John  Payne  D.  Rrgr. 

At  a  Court  of  Admiralty  Iioldon  at  HoRton  before  llio  ITon.  ) 
Robt.  Auchmuty  Esq.  Juclge  of  sd  Court.     Sept.  JO,  ]71().  ) 

1740.  Srpr.  3c7.  Thomas  Cavendish  Merchant  &  Richard  Gird- 
ler  Mariner  both  of  Marblehead  exhibited  a  Libel  against  William 
Ililligoe  of  Marblehead  Merchant  ^  part  owner  of  ye  Schooner 
Richard  &-  Hannah  for  refusing  to  fit  out  his  part  &-c.  as  p  Libel 
on  file  more  fully  sets  forth ;  the  case  was  heard  on  the  5th  currt.  at 
8  O'clock  A.  M.  and  afterwards  adjourned  to  the  10th  currt.  aforsd. 
at  which  time  the  Proponts.  &  Deft,  having  agreed  upon  the  sale  of 
the  vessell  &  nothing  but  the  costs  coming  under  consideration  the 
Judge  decreed  the  costs  to  be  paid  by  the  Deft. 

Alts.  John  Payne  D.  llegr. 

At  a  Court  of  Adxiiiralty  holden  at  Boston  before  the  Hon'ble.  ) 
Robt.  Auchmuty  Esq.  Judge  of  Admiralty.     Dec.  2,  1740.     > 

1740.  Nov.  25.  Robert  Taylor  Mariner  exhibited  a  Libel  against 
Thomas  Perkins  Master  of  the  Siiip  Prince  of  Orange  for  wages  & 
liberation  as  p.  Libel  on  file  more  fully  sets  forth,  the  case  was  fully 
hoard  on  the  second  Dcr.  aforsd.  at  which  time  the  Judge  gave  the 
following  decree  viz. 

The  Propt.  not  proving  the  Libel  I  dismiss  the  same,  and  order 
him  to  proceed  the  voyage  and  decree  the  Deft,  to  pay  the  costs  of 
Court  out  of  the  wages  due  to  the  Propnt. 

Robt.  Auchmuty  Judge  Ady. 


APPENDIX  I.  375 


At  a  Court  of  Admiralty  holden  at  Boston  before  the  Hono"ble.  ) 
Robt.  Auchmuty  Esq.  Judge  of  said  Couit  Deer,  y  lli,   17-10.  ) 

1740.  Dec.  13.  John  Searl  Mariner  exhibited  a  petition  to  his 
Honor  the  Judge  setting  forth  that  he  belongs  to  the  Schooner 
Charlestown  William  Hinckley  Master  who  has  kept  him  in  Gaol 
35  Days  under  pretence  of  his  deserting  sd  vessell  that  the  Deft,  is 
int.  upon  sailing  without  taking  ye  Propt.  or  paying  his  wages  &c. 
as  p.  Libel  on  file  more  fully  sets  forth  the  case  was  fully  heard  on 
the  IG  currt.  aforesd.  at  which  time  the  Judge  decreed  the  Petitr.  to 
proceed  the  voyage  to  AVinyau  at  the  terms  he  was  shipped  at  viz. 
^12  So.  Carolina  Currency  P.  mo.  the  shiping  [articles]  being  clan- 
destinely taken  out  of  the  Captains  chests  and  decreed  the  Capt.  to 
pay  the  prison  fees  &  the  Costs  of  Court  &  deduct  it  out  of  the 
wages  due  to  the  Pit. 

Atts.  John  Payne  D.  Regr. 

At  a  Court  of  Admiralty  holden  at  Boston  before  the  Hon.  ) 
Robt.  Auchmuty  Esq.  Judge  of  sd.  Court.     Dec.  26,  1740.  ) 

1740.  Dec.  23.  Michel  Turpin  of  Boston  Mariner  late  Mate  of 
the  Ship  Brittania  exhibited  a  Libel  against  Nicholas  Luce  late  Mas- 
ter of  said  Ship  for  wages  amounting  to  13  £  Sterling  as  p.  libel  on 
file  more  fully  sets  forth ;  the  case  was  fully  heard  on  2Gth  currt. 
afors'd.  when  his  Honor  the  Judge  decreed  the  Plf.  his  wages  as 
sued  for  &/  costs  of  Court. 

Atts.  John  Payne  D.  Regr. 

At  a  Court  of  Admiralty  holden  at  Boston  before  the  Ilono'ble.  ) 
Robt.  Auchmuty  Esq."  Judge  of  said  Court.     Jany.  3,  17-10.     ) 

1740.  Dec.  27.  John  Keeping  Mariner  and  xMate  of  the  Snow 
Diamond  John  Here  Master,  E.^hibited  a  Libel  against  sd.  Hore  for 
wages  &o  Liberation  he  being  by  sickness  rendcrred  not  capable  of 
proceeding  the  voyage  &i.c,  as  p  Libel  on  file  more  fully  sets  forth, 
the  case  was  fully  heard  on  the  30th  of  Deer,  and  on  the  3d  day  of 
Jany.  aforesaid  his  Honor  the  Judge  gave  the  following  decree  viz. 

Having  considered  this  Libel  and  the  Dcfts.  Plea  as  also  the  evi- 
dence produced  on  both  sides  together  with  the  report  of  Dr.  Cutlcf- 
apointed   by  the  Court  to  enquire   into  the   state  of  health   of  the 


370  ArTKiv;i>i.\  i. 

Propoiit.  and  uhctlicr  notwithstanding  his  lameness  he  can  witli 
safely  prosecute  the  voyage  to  South  Carolina,  I  am  of  opinion  that 
the  [)ropont.  ought  not  to  be  liberated  but  order  him  to  go  on  board 
and  as  lar  as  he  is  able  prt)scculc  said  voyage  to  South  Carolina  where 
he  may  be  liberated  if  by  sicknes  he  is  rendered  inca^)able  of  prose- 
cuting the  voyage  home  and  in  order  to  it  I  decree  the  Deft,  to  pay 
the  Propt.  one  months  wages  to  enable  him  to  discharge  hiscxpences 
to  his  Landlady  and  to  buy  proper  things  for  his  health  and  as  to  the 
costs  it  appears  to  me  the  Deft,  did  not  take  that  natural  care  of  the 
propt.  that  he  in  duty  ought,  neither  did  the  propt.  act  towards  the 
Deft,  as  his  duty  recjuired  him  but  that  both  were  in  respect  to  their 
conduct  blameworthy  therefore  order  both  parties  to  pay  ye  costs  of 
this  Court  between  them  the  Propts  Moiety  to  be  paid  by  the  Deft, 
out  of  his  wages  in  which  costs  I  allow  the  Physician  twenty  shil- 
lings that  made  the  report. 

RoBT.  AucHMUTY  Judge  Ady. 
Examned.  p.  John  Payne  I).  Rcgr. 

At  a  Court  of  Admiralty  holdcn  at  Boston  before  tlie  Hono'ble.  ■) 
Robt.  AuchimUy  Esq.  Judge  of  said  Court.     Feb.  ^1,  17J0.  5 

1740.  January  24.  Josiah  Bennett  Mariner  &  Mate  of  the 
Snow  William  exhibited  a  Libel  against  William  Ball  Master  thereof. 
For  Wages  &-  Liberation  &c.  inasmuch  as  the  Deft,  had  shipped 
another  Mate  in  his  room  or  that  he  might  be  reinstated  as  mate 
again  ice.  as  p.  Libel  on  file  more  fully  sets  forth  ;  the  case  was  fully 
heard  on  the  20th  currt.  and  on  the  21st  current  aforesd.  his  Honor 
the  Judge  gave  the  following  decree  viz. 

I  have  considered  this  Libel  and  the  special  plea  of  the  Deft,  and 
the  evidence  produced  in  the  case,  and  am  of  opinion  the  Deft,  had 
reasonable  cause  to  Ship  another  Mate  in  the  room  of  the  propt. 
wherefore  I  decline  ordering  ye  Propt.  to  receive  the  Wages  here, 
but  decree  the  Deft,  to  pay  the  same  viz.  from  ye  20  day  of  Septem- 
ber last  to  ye  15th  of  January  following  at  3  Pounds  Stl.  p.  Mo.  one 
Months  advance  wages  deducted  by  a  sett  of  bills  of  cxcha.  upon 
the  Defts.  owners :  and  forasmuch  as  it  appears  that  the  propt.  re- 
ceived ye  hurt  as  mcntiond.  in  the  Libel,  in  the  Service  of  the  Ves- 
sell,  and  is  obliged  to  pay  twentythree  shillings  to  the  Doct.  &  three 
pounds  ten  shillings  for  his  nursing  &  diet :  wh.  the  Deft,  refuses  to 


APPENDIX  I.  377 

pay  but  by  a  deduction  out  of  the  Propts.  Wages  therein  I  am  of 
opinion  the  Defts.  refusal  is  wrong  or  contrary  to  Law.  wherefore  I 
decree  the  Deft,  to  pay  ye  Propt.  the  aforesaid  sums  together  with 
the  costs  of  this  Court. 

RoBT.  AucHMUTY  Judge  Ady. 
exmnd.  p.  John  Payne  D.  Regr. 

[The  following  libel  was  exhibited  by  mariners,  after  their  vessel 
had  come  into  the  custody  of  the  court  at  the  suit  of  salvors.] 

At  a  Court  of  Admiralty  holden  at  Boston  before  the  Hon.  George  ■) 
Cradock  Esq.  Deputy  Judge  of  said  Court  Aug.  )-e  5,  174'-J.        5 

1742.  Julij  17.  Simeon  Clark  late  mate  of  the  ship  Adventure 
and  Stephen  Brown  JeoflTry  Poor  &  John  Webster  late  mariners  of 
the  said  ship  exhibited  a  libel  against  Josiah  Cocks  late  commander 
of  the  sd.  Ship  for  wages  and  salvage  as  p.  Libel  on  file  more  fully 
sets  forth.  The  case  was  fully  heard  on  the  second  of  August  and  on 
the  5th  of  Auort.  aforsd.  the  Judge  gave  ve  following  decree  viz. 

I  have  considered  this  case  with  all  its  circumstances  and  find 
that  the  propts.  were  severally  shipped  as  set  forth  in  the  Libel  and 
accordiugiy  decree  the  Deft,  to  pay  them  their  wages  from  the  time 
of  their  shipping  to  their  arrival  in  this  port  which  was  on  the  7th 
of  July  last ;  and  as  to  the  propt.  Poor  who  was  shipped  on  the  run,  I 
allow  him  fifty  five  shillings  Sterl.  p.  Month  from  the  time  of  his 
shipping  which  was  on  the  li)th  of  April  last  to  the  said  seventh  of 
July  which  is  to  be  in  full  of  tiie  propts.  wages  tt  Salvage  —  the 
wages  due  to  each  of  the  propts.  being  as  follows  viz.  —  to  the 
Propt.  Clark  Xi9  in  Province  Bills  of  the  Old  tenor  he  having  re- 
ceived -ilO  advance  wages;  to  ye  Propt.  Brown  c£'15.  in  like  .bills  he 
having  received  Xll.  ;  to  the  Propt.  Webster  X'd.  8.  10  Sterling  and 
to  the  Propt.  [Poor]  S3s.  Sterling  he  having  received  Gils  Sterl.  and 
I  order  the  defendant  to  pay  to  the  owners  what  money  the  Propts. 
have  received  more  than  their  wages  amounted  to  at  the  time  the 
ship  was  stranded  and  that  the  wages  since  that  time  be  paid  out  of 
the  goods  and  effects  saved.  I  also  decree  the  Deft,  to  pay  the  Costs 
of  this  Court. 

Gr;ouf;F,  Ckadock  Drp.  JurJgc. 

exmnd.  p.  Juh.n  I'av.m;  I).  Jirgr. 

48 


378  Al'l'LNDIX  L 

1740.  AprH '2o.  Boncy  Norcut  Mariner  exhibited  a  libel  against 
Henry  Caswell  of  lioston  Merchant  owner  of  the  Schooner  Dolpliin 
for  wages  as  p.  libel  on  file  more  fully  sets  forth  the  case  was  agreed. 

Atts.  John  Payne  D.  llcgr. 

At  a  Court  of  Admiralty  hohlcn  at  Boston  before  the  Honoble.  \ 

George  Cradock  Esq.  Dopy.  Judge  of  said  Court  Feb.  ye  5,  1742.  ) 

1742.  Oct.  20.  Thomas  Oliver  late  Master  of  the  Ship  Dragon 
exhibited  a  petition  setting  forth,  that  on  the  ninth  of  August  last, 
he  sailed  from  Port  Royal  on  the  Island  of  Jamacia  in  the  Ship 
Drason  whereof  he  was  then  Master,  bound  for  this  Port  and  that 
on  tlic  7th  Day  of  this  Inst.  Octo.  ye  said  vessell  through  the  vio- 
lence of  the  winds  &-  seas  was  unfortunately  cast  away  on  Sciluate 
Beach  where  ye  hull  of  the  Sd.  Ship  now  lies  Bilged  &c.  praying 
that  the  said  vessell  might  be  surveyed  &  that  she  with  her  appurces- 
wh.  ye  Ptr.  has  savd  &  brot.  to  this  port  may  be  appraised  by  per- 
sons to  be  appointed  by  your  Honr.  for  that  purpose,  and  that  they 
may  make  report  to  ye  Court  of  the  condition  &  circumstances  of 
said  vessell  and  that  the  same  may  be  condemned  if  your  Honr.  sees 
just  upon  sd.  report,  and  that  the  vessell  and  appurces.  be  sold  by 
decree  of  this  Court  &,c.  The  Judge  ordered  that  a  warrant  issue 
out  directed  to  INIessers.  James  Stutson,  Jonathan  Meritt,  James 
Merrett,  Joshua  Otis,  &l  Charles  Turner,  or  any  three  of  them  to 
appraise  the  said  vessell  upon  oath  in  order  to  have  the  same  sold 
(if  it  appears  for  the  owners  interest)  and,  that  the  appurces.  be- 
lontrino-  to  said  vessell  be  appraised  upon  oath  by  Mesrs.  Stephen 
Boutineau,  John  Steel,  &  Alexandr.  Chamberlain  —  accordingly  a 
warrant  was  issued  out  directed  to  ye  sd.  James  Stutson  &c.  for  the 
purpose  aforesd.  who  made  the  following  return  viz. 

Pursuant  to  the  within  warrant  we  the  subscribers  have  viewed 
and  examined  the  Ship  Dragon  as  she  now  lyes  on  Scituate  Beach 
(and  in  our  judgment  it  would  be  most  for  the  owners  or  insurers 
interest  to  have  the  vessell  sold)  and  accordingly  we  value  the  Hull 
of  the  said  vessell  as  she  now  lays  at  the  sum  of  one  hundred  and 
twenty  five  pounds  old  tenor. 

James  Stutson 
Jonathan  Meritt 
James  Merrett. 


APPENDIX  1.  379 

Ply.mo.  ss.     Scituate,  Oct.  27,  1742. 

The  subscribers  made  oath  to  the  truth  of  the  above  return  be- 
fore me  David  Little  Justice  of  Peace,  and  on  the  21st  Nov.  1742, 
the  Judge  gave  the  following  interlocutory  decree  viz. 

It  appearing  unto  mc  by  the  report  of  the  persons  appointed  to 
survey  &d  appraise  the  Ship  Dragon  that  it  would  be  most  for  the 
interest  of  the  owners  or  insurers  to  have  her  sold,  I  therefore  de- 
cree that  said  Ship  with  all  the  appurces.  &-  materials  saved  from 
her  be  sold  by  publick  vendue  by  the  Marshall  of  Court  at  the 
Royal  Exchange  Tavern  on  the  3Uth  Currt.  at  5  Oclock,  P.  M.  the 
Regr.  to  advertise  the  sale  in  the  Publick  prints  and  that  the  moneys 
arising  from  the  sale  rest  in  the  Register's  hands  until  further  or- 
der of  Court. 

George  Cradock,  D.  Judge. 

[Then  follow  the  Inventory,  Appraisement,  order  of  sale,  &c.] 

And  on  the  first  of  Jany.  1742,  John  Levey  &  Samuel  Batturs, 
Marriners  &  Samuel  Gore,  Merchant  owner  of  a  negro  man  called 
Joseph  Asken  exhibited  a  libel  against  Thomas  Oliver,  late  Com- 
mander of  the  Ship  Dragon  &,  against  the  Materials  &  effects  of 
said  vessell  setting  forth  that  each  of  the  Propts.  were  shipped  at 
London  at  the  following  Sterling  wages  viz.  ye  sd.  John  Levey  as 
Boatswain  on  the  11  of  May  1740,  at  60s.  sterling  p.  Mo.  Batturs  on 
ye  7th  May  aforsd.  as  Steward  at  40s.  p.  Mo.  &.  ye  sd.  George  [Joseph] 
as  Cook  on  ye  9th  day  of  May  aforsd.  at  35s.  P.  Mo.  that  ye  Propts. 
proceeded  in  said  vessell  and  continued  on  board  her  till  ye  7th  of 
Octo.  last  when  ye  said  Ship  was  unfortunately  cast  &lc.  praying  that 
his  Honr.  the  Judge  would  decree  them  their  wages  due  to  them  out 
of  the  materials  saved  from  ye  sd.  vessell  and  Salvage  there  being 
now  due  to  ye  Propt.  Levey  88.  16s.  Sterl.  (exclusive  of  5.  2s.  6d. 
Stcr.  already  reed.)  to  ye  Propt.  Batturs  60.  8s.  Ster.  (exclusive  of  3 
Pounds  sterling  already  reed.)  &,  ye  Propt.  Samuel  Gore  for  ye  sd. 
George's  [Joseph's]  Services  c£51.  15s.  (Exclusive  of  3.  10s.  Slcrl. 
advand.  wages)  the  case  was  heard  on  ye  sd.  Currt.  and  on  yc  15  of 
Jany.  aforesaid  the  Judge  gave  the  following  decree  viz. 

I  have  consiflered  this  Libel  with  the  plea  made  by  the  Deft,  and 
find  that   the  Pits,  were  severally  shipped   as  set  forth   in    the  Libel 


i?80  AITKlViDlX  I. 

ami  accoriliiigly  decree  them  their  respective  wages  from  the  time  of 
tlicir  shippinrf  to  ye  7th  of  October  last  deducting  thereout  what 
each  of  them  have  reed,  as  per  the  libel ;  &  tea  pounds  old  Tenour 
to  each  of  them  for  salvage  and  order  the  Regr.  to  pay  them  the 
same  out  of  tlic  proceeds  of  the  ship  Dragon  cV  appurces.  now  in 
his  hands  and  that  ye  costs  of  this  Court  be  also  paid  out  of  the 

same. 

George  Cradock  D.  Judge. 

At  a  Court  of  Admiralty  holden  at  Boston  before  the  Honoble.  Robt.  1 
Auchmuty  Esq.  Judge  of  said  Court  March  ye  10th  1741.  J 

Province  of  the  IMassaclui'ts.  ") 
Bay  Court  of  Aflmlralty       ) 

Memorandum   that   on  the   12th  day  of  January  1741   before  the 
Honoble  Robt.  Auchmuty  Esq   Judge  of  said   Court   came  Peter 
Brazier  Jr.  Gentm.  Tide  surveyor  of  all  the  Rates,  Duties  &,  Imposi- 
tions  growing   due   to   his  Majesty  at  Boston  within  the  Province 
aforesd.  who  sues  as  well  for  our  Sovereign  Lord  the  King  and  his 
Excy.  Wm.  Shirley  Esq.  Governr.  of  the  said  Province  as  for  himself, 
and  on  behalf  of*  his  Majesty  the  said  Govr.  &  himself  informs  this 
Honoble.  Court  that  on  the  14th  day  of  Deer.  last,  he  seized  as  for- 
feited to  the  use  of  his  Majy.  the  said  Govr.  &  himself,  in  the  Port 
of  Boston  aforesaid,   a  certain   vessell  named  the  Brigt.  Hannah  of 
the  Burthen  of  120  tons  or  thereabouts  with  her  tackle  apparel  & 
furniture  &l  7  cwt.  of  Junk,  the  property  of  Persons  unknown  for 
that  the  said  Junk  &l  sundry  other  commodities  all  of  the  groth,  pro- 
duction &.  Manufacture  of  Europe,  with  which  the  said  ship   was 
laden  between  the  first  day  of  November  last  &  the  seizure  aforesaid, 
were  imported  in  the  said  vessell  into  this  province  from  Rotterdam 
the  particulars  of  which   other   commodities   the   said  Peter  cannot 
here  ascertain  for  that  the   same   have   been  clandestinely  unladen 
from  the  said  vessel  since  her  arrival  in  this  Province  and  concealed 
wh.  Junk  &-  other  commodities  aforesaid  were  not  laden  and  Shipped 
on  board  the  said  vessell    in  Great  Brittain  Wales  or  the  Town  of 
Berwick  upon  Tweed,   and    also   for  that  between   the  first  day  of 
November  last  &  the  seizure  aforesaid  the  said   vessell   came  into 
this  Province  &  there  divers  Goods  &i.  Commodities  were  taken 
out  of  and  unladen  from  the  said  vessell  the  particulars  of  which 


APPENDIX  I.  381 

goods  and  Commodities  cannot  be  here  set  forth  because  the  same 
were  Clandestinely  unladen  removed  and  Concealed  \vh.  Goods  & 
Commoditys  were  unladen  from  the  said  vessell.  before  the  Master 
or  commander  thereof  had  made  known  to  the  Govner  of  the  said 
Province  or  to  the  person  or  officer  by  him  thereunto  authorised  & 
appointed  the  aforsd.  arrival  of  the  said  vessell  contrary  to  the  form 
of  the  Stat,  in  that  Case  made  and  provided 

Wherefore  the  said  Peter  as  well  on  behalf  of  his  Majesy.  &  the 
said  Govr.  as  himself  prays  the  advisement  of  this  Honoble.  Court, 
upon  the  premies  the  cognizance  whereof  properly  appertains  to  the 
same  by  force  of  the  Statute  aforesaid  and  that  the  aforesaid  vessell 
with  her  appurces.  and  the  Junk  aforsd.  seized  as  aforsd.  may  for 
the  causes  aforsd.  be  adjudged  by  this  Honoble.  Court,  to  remain 
forfeited  to  the  uses  aforsd.  and  that  the  said  Peter  may  have  one 
third  part  thereof  pursuant  to  the  Statute  aforesaid 

W.  BOLLAN.' 

1740  Jamj.  1-3.  filed  &>  Allowed  &  ordered  that  the  Brig  Han- 
nah be  arrested  and  taken  into  the  Marshall's  custody  and  the  master 
and  owners  cited  (if  they  are  to  be  found)  to  answer  this  information 
on  the  14th  currt.  at  6  o'clock  P.  M. 

RoBT.  AucHMUTY  Judge  Ady. 

Accordingly  on  the  14th  of  January  aforsd.  the  Court  was  opened 
and  the  information  read  after  which  proclamation  was  made  for  all 
persons  concerned  to  appear,  and  then  Mr.  Gridley  appeared  in 
Court,  and  claimed  the  vessell  on  behalf  of  Messers.  Quincey's  and 
made  the  following  Plea  viz 

Edmund  &<  Josiah  Quincey  owners  of  the  aforsd.  Brigt.  come  into 
Court  &i.  Say  that  no  Commodity  of  the  groth,  production  or  manu- 
facture of  F^uropc  excepting  the  aforsd.  wt.  of  Junk  were  imported 
in  the  sd.  Brigt.  from  Uottordam  into  this  Province  and  they  say 
they  had  a  riglit  to  transport  the  aforesaid  wt.  of  Junk  as  necessary 
stores  for  the  navigation  of  said  vessell  and  they  further  say  that  no 
goods  or  Commoditys  were  taken  out  of  or  unladen  from  the  said 
Brigt.  as  the  informant  above  sets  forth  ;   and  pray  their  costs. 

.li:U.  CilUUI.F.Y. 
'  Advocate  (ieneral. 


382  APPENDIX    I. 

The  Court  was  (lien  acljourned  at  the  instance  of  ye  informer  to 
ye  22nd.  Currl.  and  iVoiii  tlience  by  several  adjotirnts.  to  the  1 0th  of 
March  followinir  by  reason  the  witnesses  could  not  be  found  and  on 
the  Gth  of  March  Richard  Barry's  examination  was  taken  in  the 
Kesister's  ollicc  and  is  as  follows,  viz.  ..... 

And  on  the  10th  of  March  aforsd.  the  Court  was  opened  accord- 
ing to  adjournment  at  which  time  Edmund  &  Josiah  Quincey  claim- 
ers  of  ye  Brigt  Hannah  were  three  times  solemnly  called  to  appear 
«5o  answer  their  claim  but  they  did  not  appear  but  made  default 
whereupon 

The  Judge  decreed  the  Brigt.  Hannah  with  her  Tackle  apparel 
&  furniture  too-ether  with  the  Junk  informed  against  to  be  forfeited 
and  ordered  the  same  to  be  appraized  &  sold  by  publick  vendue  and 
the  moneys  arising  from  such  sale  after  the  Costs  of  Court  &  other 
continwent  chartres  are  deducted  to  be  distributed  one  third  to  his 
majesty,  one  other  third  to  his  Exelency  the  Governr.  and  the  re- 
maining third  part  to  the  informer  and  further  decreed  the  claimants 
to  pay  the  Costs  of  Court  as  shall  be  taxed  and  allowed  by  ye  Judge 

Att.         John  Payne  D  Regr. 

A  warrant  was  then  issued  out  of  Court  directed  to  Col.  Hatch 
Capt.  Bedgood  &l  Mr.  Benj.  Hallowell  to  inventory  and  appraize  the 
Brigt.  Hannah  &  appurces.  together  with  the  Junk  aforesd.  and  on 
the  15th  March  they  made  the  following  return,  viz. 

•  «  .  •  ,«••••••• 

And  on  the  18th  of  March  a  warrant  was  issued  out  of  Court  di- 
rected to  the  Marshall  of  Court  or  his  Deputy,  Commanding  him  to 
expose  the  Brigt.  Hannah  &  Appurces.  together  with  the  Junk  to 
sale  by  publick  vendue  to  the  highest  bidder  &c  upon  which  the 
Marshall  made  the  following  return,  viz. 

Boston  18M  March  1741. 
I   have   sold   the  Brigt.  Hannah  to  Mr.  Edmund  Quincey  for  two 
Thousand  &  nine  Pounds  three  shillings   and  one  penney  and  the 
Junk  for  three  pounds  fifteen  shillings  P  cwt.  to  said  Quincey. 

Cha.  Phaxton  Marshall. 


APPENDIX   II.  383 

Bost07i  March  19.  1741. 
1  find  by  the  return  of  the  Marshall   that  Mr.  Edmund  Quincey 
was  the  highest  bidder  and  purchaser  of  the  Brigt.  Hannah  and  ap- 
purces.  together  with  the  Junk  and  accordingly  confirm  the  sale  he 
complying  with  the  conditions  thereof 

George  Cradock  Depy.  Judge. 


II. 

VARIOUS     FORMS     OF     SHIPPING     ARTICLES. 


BOSTON   SHIPPING   ARTICLES,    FOR   TRADING   VESSELS. 


No  ardent  spirits  allowed  on  board. 
UNITED    STATES    OF    AMERICA. 

It  is  agreed  between  the  master  and  seamen,  or  mariners,  of  the 

of  whereof  is  at 

present  master,  or  whoever  shall  go  for  master,  now  bound  from  the  port 
of 

That,  in  consideration  of  the  montlily  or  other  wages  against  each  respec- 
tive seaman  or  mariner's  name  hereunder  set,  they  severally  shall  and 
will  perform  the  above-mentioned  voyage  :  And  the  said  master  doth  here- 
by agree  with  or  hire  the  said  seamen  and  mariners  for  the  said  voyage,  at 
such  monthly  wages  or  prices,  to  be  paid  pursuant  to  this  agreement,  and 
the  laws  of  the  Congress  of  the  United  States.  And  they,  the  said  sea- 
men or  mariners,  do  severally  hereby  promise  and  oblige  themselves  to  do 
their  duty,  and  obey  the  lawful  commands  of  tlioir  officers  on  board  the 
said  vessel  or  the  boats  thereunto  belonging,  as  become  good  and  faithful 
seamen  or  mariners;  and  at  all  places  where  the  said  vessel  shall  put  in,  or 
anchor  at,  during  the  said  voyage,  to  do  their  best  endeavors  for  the  preser- 
vation of  the  said  vessel  and  cargo,  and  not  to  neglect  or  refuse  doing  their 
duty  by  day  or  night,  nor  shall  go  out  of  the  said  vessel  on  board  of  any 
other  vessel,  or  be  on  shore,  under  any  pretence  whatsoever,  until  the 
above-said  voyage  be  ended,  and  the  said  vessel  be  discharged  of  her  load- 
ing, without  leave  first  obtained  of  the  captain  or  commanding  ollicer  on 
board  ;  and  in  default  thereof,  he  or  they  shall  be  liahle  to  all  the  penalties 
and  forfeitures  mentioned  in  the  marine  law,  enacted  Ibr  ilif  government 
and  regulation  of  seamen  in  the  merchants'  service,  in  which  it  is  enacted, 
"That  if  any  seaman  or  marim-r  shall  absent  himself  from  on  board  the 
ship  or  vessel,  without  leave  of  the  master  or  oflicer  commanding  on  board, 


384  APPENDIX    II. 

ami  the  mate,  or  other  officer  having  charge  of  the  log-book  shall  make  an 
entry  thorcin  of  tlie  name  of  such  seamau  or  mariner  on  the  clay  ou  which 
he  sliall  so  absent  himself;  and  if  such  seamen  or  mariner  shall  return  to 
his  duty  within  forty-eight  hours,  such  seamen  or  mariner  shall  forfeit 
three  days  pay  for  every  day  which  he  shall  so  absent  himself,  to  be  de- 
ducted out  of  his  wages  ;  but  if  any  seaman  or  mariner  siiall  absent  him- 
self for  more  than  forty-eight  hours  at  one  time,  he  shall  forfeit  all  the 
wages  due  to  him,  and  all  his  goods  and  chattels  which  are  on  board  the  said 
ship  or  vessel,  or  in  any  store  where  they  may  have  been  lodged  at  the  time 
of  his  desertion,  to  the  use  of  the  owner  or  owners  of  the  said  ship  or  ves- 
sel, and  moreover  shall  be  liable  to  pay  him  or  them  all  damages  which  he 
or  they  may  sustain  by  being  obliged  to  hire  other  seamen  or  mariners  in 
his  or  their  place."     And  it  is  further  agreed,  that  in   case  of  desertion, 
death,  or  impressment,  the  wages  are  to  cease.     And  it  is  further  agreed 
by  both  parties,  that  each  and  every  lawful  command  which  the  said  mas- 
ter or  other  officer  shall  think  necessary  hereafter  to  issue  for  the  effectual 
government  of  the   said  vessel,  suppressing   immorality  and  vice  of  all 
kinds,  to  be  strictly  complied  with,  under  the  penalty  of  the  persons  diso- 
beying, forfeiting  iiis  or  their  whole  wages  or  hire,  together  with  everything 
belonging  to  him  or  them  on  board  said  vessel.     And  it  is  further  agreed 
on,  that  no  officer  or  seaman  belonging  to  the  said  vessel  shall  demand  or 
be  entitled  to  his  wages,  or  any  part  thereof,  until  the  arrival  of  the  said 
vessel  at  the  last  above-mentioned  port  of  discharge,  and  her  cargo  deliv- 
ered.    And  it  is  hereby  further  agreed  between  the  master,  officer,  and 
seamen  of  the  said  vessel,  that  whatever  apparel,  furniture,  and  stores  each 
of  them  may  receive  into  their  charge,  belonging  to   the  said  vessel,  shall 
be  accounted  for  on  her  return  ;  and  in  case  any  thing  shall  be  lost  or  dam- 
aged, through  their  carelessness  or  insufficiency,  it  shall  be  made  good  by 
such  officer  or  seaman,  by  whose  means  it  may  happen,  to  the  master  and 
owners  of  the  said  vessel.     And  whereas  it  is  customary  for  the  officers 
and  seamen,  while  the  vessel  is  in  port,  or  whilst  the  cargo  is  delivering, 
to  go  on  shore  at  night  to  sleep,  greatly  to  the  prejudice  of  such  vessel  and 
freighters,  be  it  further  agreed  by  the  said  parties,   that  neither  officer 
nor  seaman,  shall  on  any  pretence  whatever,   be  entitled  to  such  indul- 
gence, but  shall  do  their  duty  by  day  in  discharging  of  the  cargo,  and 
keep  such  watch  by  night  as  the  master  sliall  think  necessary  to  order  rel- 
ative to  said  vessel  or  cargo;  and  whereas  it  frequently  happens  that  the 
owner  or  captain  incurs  expenses  while  in  a  foreign  port,  relative  to  the 
imprisonment  of  one  or  more  of  his  officers  or  crew  ;  or  in  attendance  of 
nurses,  or  in  payment  of  board  on  shore,  for  the  benefit  of  such  person  or 
persons :  now,  it  is  understood  and  agreed  by  the  parties  hereunto,  that  all 
such  expenditures  as  may  be  incurred  by  reason  of  the  foregoing  premises, 
shall  be  charged  to,  and  deducted  out  of,  the  wages  of  any  officer,  or  such 


APPEi\DIX    ir. 


385 


one  of  the  crew  by  whose  means  or  for  whose  benefit  the  same  shall  have 
been  paid.  And  whereas  it  often  happens  that  part  of  the  cargo  is  embez- 
zled after  being  safely  delivered  into  lighters,  and  as  such  losses  are  made 
good  by  the  owners  of  the  vessel,  be  it  therefore  agreed  by  these  presents, 
that  whatever  officer  or  seaman  the  master  shall  think  proper  to  appoint, 
shall  take  charge  of  her  cargo  in  tlie  lighters,  and  go  with  it  to  the  lawful 
quay,  and  tliere  deliver  his  charge  to  the  vessel's  husband,  or  his  represent- 
ative, to  see  the  same  safely  landed  :  That  each  seaman  or  mariner  who 
shall  well  and  truly  perform  the  above-mentioned  voyage  (provided  always, 
that  there  be  no  desertion,  plunderage,  embezzlement,  or  other  unlawl'ul 
acts  committed  on  the  said  vessel's  cargo  or  stores,)  shall  be  entitled  to  the 
payment  of  the  wages  or  hire  that  may  become  due  to  him,  pursuant  to 
this  agreement,  as  to  their  names  is  severally  affixed  and  set  forth.  Pro- 
vided, nevertheless,  that  if  any  of  the  said  crew  disobey  the  orders  of  the 
said  master  or  other  officer  of  the  said  vessel,  or  absent  himself  at  any  time 
without  liberty,  his  wages  due  at  the  time  of  such  disobedience  or  absence, 
shall  be  forfeited;  and  in  case  such  person  or  persons  so  forfeiting  wages 
shall  be  reinstated  or  permitted  to  do  further  duty,  it  shall  not  do  away  such 
forfeiture.  It  being  understood  and  agreed  by  the  said  parties,  that  parol 
proof  of  the  misconduct,  absence,  or  desertion  of  any  officer,  or  any  of  the 
crew  of  said  vessel,  may  be  given  in  evidence  at  any  trial  between  the 
parlies  to  this  contract,  any  act,  law,  or  usage  to  the  contrary  thereof  not- 
withstanding. That  for  the  due  performance  of  each  and  every  of  the 
above-mentioned  articles  and  agreements,  and  acknowledgment  of  their 
being  voluntary,  and  without  compulsion,  or  any  other  clandestine  means 
being  used,  agreed  to,  and  signed  by  us. 

In  testimony  whereof,  we  have,  each  and  every  of  us,  hereunto  affixed 
our  hands,  the  month  and  day  against  our  names,  as  hereunder  written. 
And  it  is  hereby  understood,  and  mutually  agreed,  by  and  between  the 
parties  aforesaid,  that  tiiey  will  render  themselves  on  board  the  said  vessel 
on  or  before  the  day  of 

at  o'clock  in  the  noon. 


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l»iti«Tv,  ur    if'hitnl    ihn    ntf- 

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luiitttini,  iirrimlhtf.^   lo    nel 

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on  ili'iimiitl. 

49 


38G 


APrRNnix   II. 


[The  riOluNviiig  is  cnilnrsed  on  tlie  back  nl'  tin-  articles.] 

\Vc,  ilio  iindcrsigncil,  late  mariners  on  board  ilie  on 

her  late  voyage  ilescrilied  on  tlie  oilier  side  of  this  instrument,  and  now 
perroriiicd  to  tiiis   place  of  jiayment,   do   heukby,   each   one   for  our- 
selves, with  oui  signatures  and  seals,  acknowledge  to  have  received  of 
agent  or  owner  of  said  the  ful^ 

sum  hereunder  set  against  our  respective  names.  It  being  in  full  for  our 
services,  as  wa^es,  on  board  of  said  vessel,  and  in  consideration  whcrof, 
and  particularly  the  further  sum  of  to  each  of  us 

paid,  we  have  released,  and  do  hereby  release  and  discharge  for  ever,  the 
master,  ofliccrs  and  owners  of  said  vessel,  and  each  of  them,  of  and  from 
all  suits,  claims  and  demands,  for  assault  and  battery  or  imprison- 
ment, and  every  other  matter  and  thing,  of  whatever  name  or  nature 
against  said  master,  owners  and  ofliccrs,  to  the  day  and 

date  hereunder  also  set  against  our  names. 


Names. 


Amount. 


.\mount  in 
writing. 


Place  anl  date 
of  I  ayment. 


S  gnatures  and 
So  Is. 


Witness  to  signing. 


PHILADELPHIA   SHIPPING   ARTICLES   FOR  TRADING   VESSELS. 


UNITED  STATES  OF  AMERICA. 

It  IS  AGREED,  between  the  master,  seamen  or  mariners  of  the 

whereof  is  at  present  master,  or  whoever  shall  go 

for  master,  now  bound  from  the  port  of  to 

That,  in  consideration  of  the  monthly  or  other  wages  against  each  respect- 
ive seaman  or  mariner's  name  hereunto  set,  they  severally  shall  and  will 
perform  the  abovementioned  voyage  :  and  the  said  master  doth  hereby 
agree  with  and  hire  the  said  seamen  or  mariners  for  the  said  voyage,  at 
such  monthly  wages  or  prices,  to  be  paid  pursuant  to  this  agreement,  and 
the  laws  of  the  Congress  of  the  United  Stales  of  America,  and  the  custom 
and  usage  of  the  port  of  And  they,  the  said  seamen 

or  mariners,  do  severally  hereby  promise  and  oblige  themselves  to  do  their 
duty,  and  obey  the  lawful  commands  of  their  officers  on  board  the  said  ves- 
sel, or  the  boats  thereunto  belonging,  as  become  good  and  faithful  seamen 
or  mariners;  and  at  all  places  where  the  said  vessel  shall  put  in,  or  anchor 
at,  during  the  said  voyage,  to  do  their  best  endeavors  for  the  preservation 
of  the  said  vessel  and  cargo,  and  not  to  neglect  or  refuse  doing  their  duty 
by  day  or  night,  nor  shall  go  out  of  the  said  vessel,  on  board  any  other  ves- 


APPENDIX  II.  387 

sel,  or  be  on  shore  under  any  pretence  whatsoever,  until  the  above  said 
voyage  be  ended,  and  the  said  vessel  be  discharged  of  her  loading,  without 
leave  first  obtained  of  the  captain  or  commanding  officer  on  board;  that  in 
default  thereof,  they  will  be  liable  to  all  the  penalties  and  forfeitures  men- 
tioned in  the  marine  law,  enacted  for  the  government  and  regulation  of 
seamen  in  the  merchants'  service,  in  which  it  is  enacted,  "  that  if  any  sea- 
man or  mariner  shall  absent  himself  from  on  board  the  ship  or  vessel, 
without  leave  of  the  master  or  officer  commanding  on  board,  and  the  mate, 
or  other  officer  having  charge  of  the  log-book,  shall  make  an  entry  therein 
of  the  name  of  such  seaman  or  mariner  on  the  day  on  Avhich  he  shall  so 
absent  himself;  and  if  such  seaman  or  mariner  shall  return  to  his  duty 
within  forty-eight  hours,  such  seaman  or  mariner  shall  forfeit  three  days' 
pay  for  every  day  which  he  shall  so  absent  himself,  to  be  deducted  out  of 
his  wages :  but  if  any  seaman  or  mariner  shall  absent  himself  for  more 
than  forty-eight  hours  at  one  time,  he  shall  forfeit  all  wages  due  to  him, 
and  all  his  goods  and  chattels,  which  were  on  board  the  said  ship  or  vessel, 
or  in  any  store  where  they  may  have  been  lodged  at  the  time  of  his  deser- 
tion, to  the  use  of  the  owner  or  owners  of  the  said  ship  or  vessel;   and 
moreover  shall  be  liable  to  pay  him  or  them  all  damages  which  he  or  they 
may  sustain  by  being  obliged  to  hire  other  seamen  or  mariners  in  his  or 
their  place."     And  it  is  further  agreed,  that  in  case  of  capture,  death,  or 
impressment,  the  wages  are  to  cease.     And  it  is  further  agreed  by  both 
parties,  that  each  and  every  lawful  command  which  the  said  master  shall 
think  necessary  hereafter  to  issue  for  the  effectual  government  of  the  said 
vessel,  suppressing  immorality  and  vice  of  all  kinds,  to  be  strictly  complied 
with,  under  the  penalty  of  the  person  or  persons  disobeying,  forfeiting  his 
or  their  whole  wages  or  hire,  together  with  everything  belonging  to  him  or 
them  on  board  said  vessel.     And  it  is  further  agreed  on,  that  no  officer  or 
seaman  belonging  to  the  said  vessel,  shall  demand  or  be  entitled  to  his 
wages  or  any  part  thereof,  until  the  arrival  of  the  said  vessel  at  the  above- 
mentioned  port  of  discharge,  and  her  cargo  delivered.     And  it  is  hereby 
further  agreed  between  the  master  and  officers  of  the  said  vessel,  that  what- 
ever apparel,  furniture,  and  stores,  each  of  them  may  receive  into  their 
charge,  belonging  to  the  said  vessel,  shall  be  accounted  for  on  her  return  ; 
and  in  case  any  thing  shall  be  lost  or  damaged,  through  their  carelessness 
or  insufficiency,  it  shall  be  made  good  by  such  officer  or  seaman  by  whose 
means  it  may  happen,  to  the  master  and  owners  of  the  said  vessel.     And 
whereas  it  is  customary  for  tlte  said  officers  and  seamen,  on  the  vessel's  re- 
turn home,  in  the  harbor,  and  whilst  the  cargo  is  delivering,  to  go  on  shore 
each  night  to  sleep,  greatly  to  the  prejudice  of  such  vessel  and  freighters, 
be  it  further  agreed  by  the  ship  parties,  that  neither  officer  nor  seaman  shall, 
on  any  pretence  whatever,  be  entitled  to  such  indulgence,  but  shall  do  their 


n88 


APPKNDIX   II. 


duly  by  Jay  in  dischargee  of  the  cargo,  and  koep  such  watch  by  nij^ht  as  the 
master  sliall  think  necessary  to  order  for  llie  preservation  of  tlie  above. 
And  whereas  it  often  happens  that  part  of  the  cargo  is  enibez/.U-d  after  be- 
ing safely  delivered  into  lighters,  and  as  sucli  losses  are  made  good  by  the 
owners  of  the  vessel,  be  it  therefore  agreed  by  these  presents,  that  what- 
ever otliocr  or  seaman  the  master  shall  think  proper  to  appoint,  shall  take 
charge  of  her  cargo  in  the  lighters,  and  go  with  it  to  the  lawful  quay,  and 
there  deliver  his  charge  to  the  vessel's  husband,  or  his  representative,  to 
see  the  same  safely  landed :  that  each  seaman  or  mariner  who  shall  well 
and  truly  perform  the  abovementioned  voyage,  (provided  always  that  there 
be  no  plunderage,  embezzlement,  or  other  unlawful  acts  committed  on  the 
said  vessel's  cargo  or  stores,)  shall  be  entitled  to  the  payment  of  the  wages 
or  hire  that  may  become  due  to  him,  pur^^uant  to  this  agreement,  as  to  their 
names  is  severally  affixed  and  set  forth.  Provided,  nevertheless,  that  if 
any  of  said  crew  disobey  the  orders  of  the  said  master  or  other  officer  of 
the  said  vessel,  or  absent  himself  at  any  time  without  liberty,  his  wages 
due  at  the  time  of  such  disobedience  or  absence,  shall  be  forfeited,  and  in 
case  such  person  or  persons  so  forfeiting  wages  shall  be  reinstated  or  per- 
mitted to  do  further  duty,  it  shall  not  do  away  such  forfeiture.  That  for 
the  due  performance  of  each  and  every  of  the  abovementioned  articles  and 
agreements,  and  acknowledgment  of  their  being  voluntary,  and  without 
compulsion,  or  any  other  clandestine  means  being  used,  agreed  to  and 
signed  by  us.  In  testimony  whereof,  we  have  each  and  every  of  us  under 
affixed  our  hands,  month  and  day  against  our  names  as  hereunto  written. 
And  it  is  hereby  understood  and  mutually  agreed,  by  and  between  the  par- 
ties aforesaid,  that  they  will  render  themselves  on  board  the  said 
on  or  before  the  day  of  at  o'clock  in 

the  noon 


w 

V. 

Time  of 

Day  anil  linnr  when  lliev 

Wages      for 

Wa^esail- 

i^ 

l*l:u:('s  <jf  a- 

E9 

V 

Entry. 

are  to  rend 

er  tlieniselves 

the  voyaf;e 

Vdiiceti. 

bdde  of  the 

tfi* 

e 

3 

5' 

oil  board. 

or  month. 

Sureties. 

2 

3 

2 

o 

3 

c 
> 

o" 

O 
5" 

O 
'/J 

2 

OQ 

•-J 

m 

•1 

% 

p 

V 

a 

a 

U) 

We,  the  undersigned,  late  mariners  on  board  the  on 

her  late  voyage  described  on  the  other  side  of  this  instrument,  and  now 
performed  to  this  place  of  payment,  do  iiereby,  each  one  for  our- 
selves, with  our  signatures,  acknowledge  to  have  received  of 
agent  or  owner  of  said  the  full  sum  hereunder  set 

a^^ainst  our  names  ;  it  being  in  full  amount  of  our  wages  for  our  services. 


APPEiNDIX  TT. 


389 


and  of  all  demands  for  assault  axd  batteky  or  imprisonment,  and  of 
whatever  name  or  nature  against  said  her  owners 

and  officers,  to  the  day  and  date  hereunder  also  set  against  our  names. 
Note.    A  consideration  must  he  given  for  a  discharge  for  assault  and  bat- 
tery, and  this  receipt  understood  by  the  signers. 


Names. 


Amount. 


Amount  in 
writlii". 


Place  and  date 
(if  payment. 


Signatures. 


Witness  to  signing. 


ARTICLES   USED   IN   THE    COD   FISHERIES   OF   THE   NEW   ENGLAND   STATES. 


It  IS  HEREBY  AGREED  between  the  master  or  skipper  of  the 

fishing  schooner  of  the  burthen  of  tons,  and  feet, 

and  the  fishermen  thereof,  now  bound  from  ,  on  a  fishing 

voyage  .     That,  in  consideration  of  the  said  master  or 

skipper,  and  fishermen  being  entitled  to  fn-c  eighth  parts  of  the  fish  which 
may  be  caught  on  board  said  schooner  during  their  service  on  board  the 
same,  and  also  to  five  eighth  parts  of  the  money  which  by  law  is  allowed 
to  said  schooner  during  the  same  term,  after  deducting  the  general  supplies 
and  other  supplies,  according  to  the  usage  and  custom  of  they 

severally  shall  and  will  perform  their  duty  on  board  the  schooner  aforesaid, 
during  the  term  for  which  they  herein  engage  :  And  the  said  master  or 
skipper  doih  hereby  agree  with  and  hire  the  said  fishermen,  agreeably  to 
the  terms  aforesaid,  for  and  during  the  fishing  season  ending  the  last  day 
of  November  next,  and  until  the  voyage  or  voyages  of  said  season  shall  be 
completed.  And  the  said  fishermen  oblige  themselves  faithfully  to  perform 
their  duty  on  board  said  schooner  during  said  season  ;  and  in  all  things, 
and  at  all  times,  to  fulfil  the  lawful  commands  of  said  master  or  skipper. 
And  the  said  master  or  skipper,  and  the  said  fishermen,  mutually  hold 
themselves  bounden  by  the  rules,  orders  and  regulations  set  forth  in  an  Act 
of  Congress  for  the  regulation  and  government  of  fishermen,  in  which  it  is 
enacted, 

"  That  if  any  Fisherman,  having  engaged  himself  for  a  voyage  or  fishing 
season,  in  any  fisiiing  vessel,  and  signed  an  agreement  therefor  as  afore- 
said, shall  thereafter,  and  while  such  agreement  remains  in  force,  and  to 
be  performed,  desert  or  ab.scnt  himself  from  such  vessel,  without  leave  of 
the  master  or  skipper  thereof,  or  of  the  owner  or  his  agent,  such  deserter 
shall  be  liable  to  the  same  penalties  as  deserting  seamen  and  mariners  arc 
subject  to  in  the  merchants'  service,  and  may  in  like  manner,  and  upon  the 


390 


AI'rKM)l\    II. 


like  complaint  and  proof,  be  apprehended  and  detained ;  and  all-  costs  of 
process  and  coniniitnicnt,  if  paid  by  the  master  or  owner,  shall  be  deducted 
out  of  the  share  of  fisii,  or  jiroceeds  of  any  fishinir  voyage,  to  wiiich  such 
deserter  had  or  sliall  become  enlilled.  Ami  any  lisherman  liaving  engaged 
himself  as  aforesaid,  who  shall,  during  said  fishing  voyage,  refuse  or  neglect 
his  proper  duly  on  board  the  fishing  vessel,  being  thereto  ordered  or  required 
by  the  master  or  skipper  thereof,  or  shall  otherwise  resist  his  just  com- 
mands, to  the  hindrance  or  detriment  of  such  voyage,  beside  being  answer- 
able for  all  the  damage  arising  thereby,  shall  forfeit  to  the  use  of  the  owner 
of  such  vessel  his  share  of  the  allowance  which  shall  be  paid  upon  such 
voyage,  as  is  herein  granted." 

And  it  is  further  agreed,  in  conformity  to  said  act,  that  the  //ce  eighths 
of  all  the  fish  taken  as  aforesaid,  and  which  shall  accrue  to  the  master  or 
skipper,  and  fishermen,  according  to  the  foregoing  terms,  shall  be  divided 
among  them  in  proportion  to  the  quantities  or  number  of  said  fish  they 
may  respectively  have  caught;  and  that  the  five  eighths  of  the  money 
allowed  by  law  to  said  schooner,  accruing  to  said  master  or  skipper,  and 
the  fishermen,  according  to  the  terms  aforesaid,  shall  be  divided  among 
them  in  such  proportions  as  the  fish  they  shall  respectively  have  taken, 
may  bear  to  the  whole  quantity  of  fish  taken  on  board  said  schooner  during 
said  season. 

For  the  due  performance  of  each  and  all  the  above  articles  and  agree- 
ments, and  in  witness  of  their  being  freely  and  voluntarily  entered  into,  we 
have  hereunto  severally  affixed  our  hands,  the  month  and  day  against  our 
names  respectively  affixed,  and  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and 


Time  agreed  to  enter  on 
board  for  dutv. 


Men's  names. 


duality. 


Where  born. 


Witnesses  to  signing. 


ACCOUNT    OF   THE    FISHING   FARES   OF    THE    WITHIN    NAMED    VESSEL. 


Fares. 


1st, 

2d, 

3d, 

4th, 

5th, 

6th, 

7th, 

8th, 

9lh, 

30th, 

nth, 

12th, 


Days  on  which  the 
vessel  sailed. 


18 


Days  on  which  the 
ve.-sel  returiiod. 


18 


Time  actually  em- 
ployed at  sea. 


Tons. 


Quintals  of 
Fish. 


APPENDIX  II.  391 

I  do  solemnly  swear,  that  the  paper  now  by  me  produced, 

is  the  original  agreement  made  the  day  of  18        be- 

tween the  owner  and  fishermen  of  the  schooner  skipper; 

and  that  the  above  is  a  true  statement  of  the  days  on  which  the  schooner 
sailed  and  returned;  and  that  said  schooner  and  crew  have  been  actually 
employed  four  months  of  the  preceding  fishing  season  solely  in  the  Bank 
and  Cod  Fisheries. 


COLLECTOR'S   OFFICE —District  of 
Sworn  this  day  of  18 


Collector. 


whalemen's   shipping   paper   used   in   the    port   of   new   BEDFORD. 


1st.  It  is  agreed  between  the  owner  ,  master,  seamen  and  mariners, 
of  the  now  bound  from  the  port  of  That  in  considera- 

tion of  the  share  against  each  respective  seaman  or  mariner's  name 
hereunder  set,  they  severally  shall  and  will  perform  the  above-mentioned 
voyage  ;  and  the  said  owner  and  master,  do  hereby  agree  with,  and  hire 
the  said  seamen  or  mariners  for  the  said  voyage,  at  such  shares  of  the  net 
proceeds,  or  of  the  actual  products  of  the  voyage,  to  be  paid  pursuant  to 
this  agreement,  and  the  custom  and  usage  in  the  port  of 

2d.  And  ihey,  the  said  seamen  and  mariners,  do  severally  hereby  promise 
and  oblige  themselves  to  do  their  duty,  and  obey  the  lawful  commands  of 
the  officers  on  board  said  or  the  boats  thereunto  belonging,  as 

become  good  and  faithful  seamen  or  mariners,  while  cruising  for  whales, 
and  at  all  places  where  the  said  shall  put  in,  or  anchor  at, 

during  the  said  voyage  ;  —  to  use  their  best  endeavors  to  obtain  a  cargo  of 
oil ;  —  and  for  the  preservation  of  the  said  vessel  and  cargo ;  —  and  not  to 
neglect  or  refuse  doing  their  duly  by  day  or  night;  —  and  that  they  shall 
not  go  out  of  said  on  board  any  oilier  vessel,  or  be  on  shore, 

under  any  pretence  whatsoever,  until  ihe  aforesaid  voyage  be  ended,  and 
the  vessel  discharged  of  her  loading,  without  leave  first  obtained  of  the 
captain,  or  commanding  officer  on  board;  that  in  default  tlicreof,  he  or 
they  shall  be  liable  to  all  the  penalties  and  forfeitures  mentioned  in  tiie 
Marine  Law,  enacted  for  the  Government  and  Regulation  of  Seamen  in 
the  Merchants'  Service  ;  it  being  understood  that  said  forfeiture  shall  be 
estimated  according  to  his  or  their  respective  shares  of  the  net  proceeds  of 
the  voyage,  and  the  length  of  the  same  conjointly. 


392  APPENDIX   II. 

3cl.  And  it  is  further  agreed  by  all  the  parties  to  this  contract,  that  such 
regulations  as  a  just  regard  lo  ilic  i;u(h1  order,  efiectiial  government,  health 
;uul  moral  habits  of  the  officers  and  men  shall  he  established  and  oliserved 
on  board  the  said  vessel.  And  to  ensure  proper  attention  to  this  important 
object,  it  shall  be  the  duty  of  the  olliccr  having  the  care  of  llic  log  book,  to 
note  therein  daily  all  flagrant  breaches  of  the  same.  It  shall  especially  be 
his  duty  to  record  all  instances  of  diiiulienness.  all  eases  of  absence  from 
the  said  by  any  ofllcer  or  seaman  with  or  without  permission  after 

sunset,  or  beyond  the  time  prescribed  for  their  absence,  —  every  instance  of 
absence,  by  any  ofllcer  or  seaman  through  the  night,  whether  on  shore  or 
on  board  of  any  other  vessel,  —  every  instance  of  the  introduction  of  any 
woman  or  women  into  the  ship  for  licentious  purposes,  —  every  instance 
of  disability  for  the  performance  of  ship's  duty,  which  may  occur,  with  the 
cause  of  it,  —  if  occasioned  by  sickness  or  infirmity,  the  nature  and  origin 
of  the  same,  if  known,  to  be  particularly  slated,  especially  if  it  be  the  con- 
sequence of  their  own  misconduct.  And  in  case  of  the  officer  who  may 
usually  have  charge  of  the  log  book  being  implicated  in  any  of  the  misde- 
meanors or  disabilities  herein  mentioned,  it  shall  be  the  duty  of  the  master 
to  make,  or  cause  to  be  made  by  another  hand,  an  entry  of  the  same  on  the 
log  book.  And  it  shall  be  the  duty  of  the  master  to  see  that  a  proper  record 
is  kept  therein  of  all  the  matters  mentioned  in  this  article  according  to  its 
true  intent  and  meaning. 

4th.  The  officer  having  charge  of  the  watch  on  deck  for  the  time  being, 
shall  be  responsible  for  the  maintenance  of  the  regulation  in  regard  to  the 
admission  of  women  —  and  in  case  of  any  getting  on  board  unperceived, 
they  shall  forthwith  be  expelled  by  him,  or  if  not  able  to  do  so,  the  case 
shall  be  immediately  reported  to  the  captain  or  commanding  officer  on 
board,  whose  duty  it  shall  be  to  enforce  their  immediate  expulsion.  On 
the  failure  of  any  oflicer  in  this  part  of  his  duty,  either  wilfully  or  through 
negligence,  each  and  every  officer  so  failing,  shall  forfeit  twenty  days  pay 
for  every  such  offence,  and  any  other  officer  or  seaman  who  shall  abet  any 
breach  of  the  said  regulation  —  or  refuse  when  lawfully  called  upon  to  aid 
in  sustaining  it,  or  shall  be  proved  to  have  had  a  criminal  intercourse  with 
any  such  woman  or  women  on  board,  shall  forfeit  for  each  such  offence,  five 
days  pay  —  for  every  instance  of  drunkenness  two  days  pay  shall  be  for- 
feited, and  a  similar  forfeiture  shall  take  place  for  each  day  that  any  sea- 
man or  officer  shall  be  off  duty  from  sickness  or  disability  caused  by  in- 
temperance or  licentiousness  —  the  forfeitures  in  all  these  cases  to  be 
estimated  as  in  the  second  article,  and  to  go  to  the  use  of  the  owners  of 
said 

5lb.  All  expenses  which  may  be  necessarily  incurred  during  the  voyage 
with  direct  reference  to  any  of  the  misdemeanors  or  disabilities  enumerated 


APPENDIX  II.  393 

in  the  third  article  —  or  to  any  attempt  at  desertion  or  other  disobedient  or 
mutinous  conduct,  shall  be  charged  to  the  individual  or  individuals  by 
reason  of  whom  tliey  may  have  been  incurred. 

6ih.  It  is  further  agreed  that  if  any  officer  or  seaman,  after  a  fair  trial, 
if  his  abilities  and  disposition  shall  be  judged  by  the  master  incompetent 
or  indisposed  to  the  proper  discharge  of  the  duties  of  his  station,  the  master 
shall  have  the  right  to  displace  him  and  substitute  another  in  his  stead, — 
a  corresponding  reduction  of  the  lay  of  such  officer  or  seaman  with  reference 
to  the  duty  which  he  may  afterwards  perform,  thenceforth  to  takeeflect; 
and  a  reasonable  increase  of  the  lay  of  the  individual  who  inay  thereupon 
be  promoted  to  a  higher  station,  shall  be  made  on  the  final  adjustment  of 
the  voyage. 

7th.  It  is  understood  and  agreed  that  if  any  officer  or  seaman  shall  be 
prevented  by  sickness  or  death  from  performing  the  voyage,  his  legal 
representatives  shall  be  entitled  to  such  part  of  the  whole  amount  of  his 
stipulated  share,  as  the  time  of  his  services  on  board  shall  be  of  tl-.e  whole 
term  of  the  voyage. 

Sih.  It  is  further  agreed  that  whatever  apparel,  furniture,  or  stores  be- 
longing to  the  said  vessel,  may  be  given  in  charge  by  the  master  to  any 
officer  or  seaman,  shall  be  accounted  for  by  him,  and  in  case  any  thing 
shall  be  lost  or  damaged  through  his  carelessness  or  neglect,  it  sliaJl  be 
made  good  to  the  owners,  by  such  officer  or  seaman.  And  whatever  officer 
or  seaman  the  master  shall  appoint  for  the  duty,  shall  take  charge  of  any 
portion  of  the  cargo  or  ship's  stores  required  to  be  landed  or  brought  on 
board  in  any  boats  or  lighter,  and  faithfully  perform  the  service  assigned, 
and  see  that  the  said  cargo  or  stores  are  safely  landed  and  delivered,  or 
brought  on  board  the  said  vessel  as  the  case  may  be. 

9lh.  Each  and  every  officer  and  seaman,  who  shall  well  and  truly  have 
performed  the  above  mentioned  voyage,  complied  with  the  regulations 
and  duties  herein  specified,  and  committed  no  dishonest  or  unlawful  acts, 
shall  be  entitled  to  the  payment  of  his  share  of  the  net  proceeds  of  the 
voyage  pursuant  to  this  agreement,  as  soon  after  the  return  of  the  said 
to  as  the  oil   and  other  products  of  the  voyage 

can  be  sold  and  ilic  settlement  adjusted  by  llic  owner  or  agent  of  the 
said 

lOth.  In  testimony  of  our  assent,  consent  and  agreement  faithfully  to 
perform  the  various  duties  and  obligations  implied  in  the  preceding  arti- 
cles, and  in  acknowledgment  of  their  being  voluntary,  and  wiilioui  any 
compulsory  or  clandestine  means  being  used,  we  have,  each  and  every  of 
us,  severally,  liereunto  affixed  our  names,  on  the  day  and  year  against  tlicm 
respectively  written.  And  it  is  hereby  understood,  and  mntually  agreed,  by 
and  between  the  parties  aforesaid,  that  they  the  seamen  and  mariners  will 

50 


391 


AI'l'ENniX    II. 


render  themselves  on  boaul  the  said  vessel  on  or  before  the 

day  of  at        o'clock  in  the         noon. 

OCT"  No  distilled  spirituous  liquor  will  be  put  on  board  this  vessel  by  the 
owner,  except  for  strictly  medical  use:  —  and  by  their  signatures  the  otlicr 
parties  to  tius  contract  plnli^c  themselves  not  to  take  any  of  tlicse  articles 
with  them  as  their  private  stores,  or  for  tralhc,  ciihcr  from  tliis  port  or  any 
other  port  or  place,  where  they  may  be,  during  tlic  voyage.  And  in  case 
of  a  violation  of  this  pledge  by  the  master  or  any  officer  or  seaman,  his 
entire  share  of  the  voyage  shall  be  thereupon  forfeited  to  the  use  of  the 
owners  of  the  said 


Time  of  Entry. 


Names. 


Quality. 


Witness  to  Signing. 


Shares. 


NOTES   ON   THE   WHALE   FISHERY.* 

1.  The  master  has  a  lien  upon  the  lay  of  a  sailor  for  necessaries,  &c., 
advanced  to  him.     See  Barrey  v.  Coffin,  3  Pick.  R.  115. 

2.  If  a  seaman  should  die  during  the  voyage,  the  vessel  having  procured 
a  quantity  of  oil  before  his  death,  and  the  ship  should  afterwards  be  totally 
lost,  qutere,  whether  his  representatives  could  recover  his  wages  according 
to  the  above  named  articles  in  the  shipping  paper?  See  American  Jurist, 
vol.  X,  p.  260,  and  Hall's  American  Law  Journal,  359. 

3.  Mateship.  See  the  custom  explained,  and  the  law  in  relation  to  it 
stated  in  the  following  cases.  Baxter  v.  Rodman,  3  Pick.  R.  435;  Grazier 
V.  Atwood,  4  Ibid.  234.  The  contract  of  mateship,  which  was  once  rather 
common  in  the  whale  fishery,  is  now  rarely  entered  into. 

4.  The  rule  with  regard  to  the  occupancy  of  these  animals  "  ferae  na- 
turse,"  is  believed  to  be  somewhat  different  from  the  rule  of  the  common 
law  in  regard  to  land  animals.  The  whaling  craft  of  every  vessel  is' 
marked,  harpoons,  lances,  &c.  When  a  whale  has  been  acluaUy  killed,  and 
other  game  is  in  siglit,  or  it  is  inconvenient  for  any  other  reason  to  take 
him  on  board,  it  is  usual  for  the  captors  to  fasten  a  ''waif,"  (marked  iron) 
into  the  body  and  leave  it.  Many  days  may  elapse  before  the  animal  is 
recovered.  And  if,  in  the  meantime,  another  ship  should  fall  in  with  it, 
and  the  waif  is  still  adhering  to  the  body,  the  right  of  property  is  considered 

'  The  author  is  indebted  for  these  notes  to  a  learned  friend,  H.  G.  O.  Colby, 
Esq.  of  New  Bedford. 


APPENDIX  II.  395 

as  remaining  in  the  original  captors,  and  is  strictly  respected.  If  it 
were  violated,  trover  would  undoubtedly  lie.  When  a  number  of  vessels 
are  engaged  in  pursuit  of  the  same  whale,  and  a  boat's  crew  succeeds  in 
making  fast  to  it,  no  crew  from  any  other  vessel  have  any  right  to  attack 
the  whale.  But  should  the  harpoons  of  the  first  draw,  and  the  boat  become 
detached,  they  then  have  a  right  to  renew  the  chase  equally  with  the  others. 
See  Cooper's  Justinian,  Note,  page  457,  as  to  land  animals. 

5.  In  the  settlement  of  the  voyage,  at  its  termination,  the  following 
charges  are  usually  made  against  the  whole  quantity  of  catchings  of  every 
description. 

Pilotage  to  and  from  sea,  and  to  wharf,  say  $50. 

Wharfage,  hbs.  oil,  bone,  &;c. 

Guagiug. 

Cooperage. 

Scaleo  to  weigh  whale  bone. 

Cartage  and  storage  of  whale  bone. 

Filling  up  and  pumping  off  cargo. 

Commission,  2  1-2  per  cent  on  the  sum  total. 

The  net  proceeds  are  then  divided  amongst  the  officers  and  men,  ac- 
cording to  the  lay  agreed  upon.  The  ship's  agent  makes  up  the  voyage  at 
the  current  price  of  oil  and  bone  at  the  time  of  the  arrival  of  the  ship,  and 
pays  off  the  men  in  money. 

6.  It  has  been  questioned  whether  the  provisions  of  the  act  of  July  20, 
1790,  "For  the  government  and  regulation  of  seamen  in  the  merchant  ser- 
vice," in  reference  to  deserting  seamen,  apply  to  seamen  engaged  in  the 
whale  fishery.  The  statute  has,  however,  been  always  acted  upon  in  the 
port  of  New  Bedford,  as  applying  to  seamen  engaged  in  the  whale  fishery, 
that  is  to  say,  warrants  are  issued  against  seamen  after  they  have  signed 
the  shipping  paper,  and  before  the  sailing  of  the  same,  for  their  arrest,  and 
they  have  been  put  on  board  by  virtue  of  them,  but  we  are  not  aware  of 
any  judicial  decision  upon  the  question. 


whalemen's   shipping    paper   used    in    the    port   of   NANTUCKET* 


It  is  agreed  between  the  owners,  master,  seamen  and  mariners  of  tlie 

of        ,  master,  now  bound  on  a   whaling  voyage  to  the 

Pacific  Ocean.     That  in  consideration  of  the  shares  affixed  to  our  names, 

we,  the  said  seamen  and  mariners,  will   perform  a  wlmlinp:  voyage  fttnn 

Nantucket  and  return  to  Nantucket,  promising  hereby  to  obey  the  lawful 


39G  APPENDIX   II. 

coinmnnds  of  tlie  snid  master,  or  the  other  officers  of  said  8hip,  and  faith- 
fully to  do  and  perform  the  duty  of  seamen,  as  required  by  the  said  mas- 
ter, by  night  or  by  day,  on  board  the  said  ship  or  in  her  boats  ;  and  on  no 
account  or  pretence  wiiatever  to  go  on  sliore  witliout  leave  first  obtained 
froui  the  master  or  commanding  officer  of  the  said  ship:  hereby  engaging, 
that  forty-eight  hours  absence,  without  such  leave,  shall  be  deemed  a  total 
desertion.  And  in  case  of  disobedience,  neglect,  pillage,  embezzlement,  or 
desertion,  the  said  mariners  do  forfeit  their  shares,  together  with  all  their 
goods,  chattels,  tkc.  on  board  the  said  ship:  hereby  for  themselves,  heirs, 
executors  and  administrators,  renouncing  all  right  and  title  to  the  same. 
And  the  owners  of  said  ship  hereby  promise,  upon  the  above  conditions, 
to  pay  the  shares  of  net  proceeds  of  all  that  shall  be  obtained  during  the 
said  voyage,  agreeably  to  the  shares  set  against  the  names  of  seamen  and 
mariners  of  the  [ship's  name,]  as  soon  after  the  return  of  said  ship  to  Nan- 
tucket as  the  oil,  or  whatever  else  may  be  obtained,  can  be  sold,  and  the 

voyage  made  up  by  the  owners  of  said  ship . 

It  is  further  agreed  between  the  owners  of  said  ship  on  the  one  part,  and 
the  captain,  officers,  and  crew,  on  the  other  part,  that  if  the  captain,  offi- 
cers, and  crew,  or  either  of  them,  is  prevented  by  sickness  or  death  from 
performing  said  voyage  in  said  ship,  that  he  or  they  so  falling  short,  shall 
receive  of  his  lay  or  share  in  proportion  as  the  time  served  on  board,  is  to 
the  whole  time  said  ship  is  performing  her  voyage. 


It  will  be  seen  that,  though  this  paper  provides  for  the  case  of  a  mariner 
who  dies,  or  becomes  disabled  by  sickness,  during  the  voyage,  it  does  not 
provide  expressly  for  the  case  of  one  who  ships  in  place  of  the  person  so 
dying  or  disabled.  A  case  was  tried  in  the  Supreme  Court  of  Massachu- 
setts, (Bristol,  in  1840,  Shaw  v.  Mitchell,)  in  which  this  question  arose,  but 
the  case  went  ofT  upon  another  point.  The  following  extracts  are  made, 
however,  from  two  depositions  which  were  used  in  the  case,  and  which 
were  admitted  to  state  the  custom  truly  : 

"I  have  been  in  the  habit  of  settling  whaling  voyages,  since  the  year 
1830,  in  which  business  my  duty  has  been  to  receive  the  cargo  at  the  wharf, 
ascertain  the  contents,  and  apportion  to  the  crew  and  owners  respectively 
their  shares,  according  to  their  several  demands  and  established  usage. 
These  are  uniformly  the  duties  of  agents  for  settling  voyages  at  Nantucket. 
When  a  mariner  has  not  served  onboard  a  whaler  during  the  whole  voyage, 
having  left  by  reason  of  sickness  or  by  mutual  consent,  the  usage  is,  to 
pay  such  man,  in  proportion  as  the  time  during  which  they  serve,  bears  to 
the  entire  duration  of  the  voyage." 


APPEJNDIX  II.  397 

"I  have  been  in  the  habit  of  settling  whale  voyages  for  the  last  sixteen 
years  as  a  general  agent,  taking  into  possession  the  whole  cargoes  as  they 
arrive,  making  distributions  of  the  same  among  the  owners  and  crew,  ac- 
cording to  their  several  interests.  It  is  the  uniform  practice,  where  sea- 
men serve  but  part  of  the  voyage,  to  ascertain  the  time  ihey  did  serve,  from 
the  shipping  paper,  or  other  proper  documents,  and  to  settle  with  them  in 
the  same  manner  as  is  expressed  by  the  shipping  paper  in  relation  to  per- 
sons leaving  a  ship  in  consequence  of  sickness  or  death,  unless  there  should 
exist  a  special  contract  or  written  agreement  to  the  contrary." 


BRITISH   SHIPPING   ARTICLES   FOR   TRADING    VESSELS,    REQUIRED    BY   THE 
ACT   5   i;   6   WILLIAM  rv,   CH.    19. 


An  agreement  made,  pursuant  to  the  directions  of  an  act  of  Parliament, 
passed  in  the  sixth  year  of  the  reign  of  His  Majesty  King  William  the 
Fourth,  between  the  master  of  the  ship  ,  of 

the  port  of  ,  and  of  the  burthen  of         tons,  and  the  several 

persons  whose  names  are  subscribed  hereto. 

It  is  agreed  by  and  on  the  part  of  the  said  persons,  and  they  severally 
hereby  engage,  to  serve  on  board  the   said  ship  in  the  several  capacities 
against  their  respective  names  expressed,  on  a  voyage  from  the  port  of 
,  to  [here  the  intended  voyage  is  to  be  described  as 

nearly  as  can  be  done,  and  the  places  at  which  it  is  intended  the  ship  shall  touch, 
or  if  that  cannot  be  done,  the  nature  of  the  voyage  in  ivhich  she  is  to  be  em- 
ployed,] and  back  to  the  port  of  ,  and  the  said  crew  further  en- 
gage to  conduct  themselves  in  an  orderly,  faithful,  honest,  careful,  and  sober 
manner,  and  to  be  at  all  times  diligent  in  their  respective  duties  and  sta- 
tions, and  to  be  obedient  to  the  lawful  commands  of  the  master  in  every 
thing  relating  to  the  said  ship,  and  the  materials,  stores,  and  cargo  thereof 
whether  on  board  such  ship,  in  boats,  or  on  shore  [here  may  be  inserted  any 
other  clauses  ivhich  the  parties  may  think  proper  to  be  introduced  into  the 
agreement,  provided  that  the  same  be  not  contrary  to  or  inconsistent  with  the 
provisions  and  spirit  of  this  act.]  In  consideration  of  which  services  to  be 
duly,  honestly,  carefully,  and  faithfully  performed,  the  said  master  doth 
hereby  promise  and  agree  to  pay  to  the  said  crew,  by  way  of  compensation 
or  wages,  the  amount  against  their  names  respectively  expressed.  In  wit- 
ness whereof  the  said  parties  have  hereto  subscribed  their  names  on  the 
days  against  ihcir  respective  signatures  mentioned. 


398 


ArrF.xnix  ii. 


rince  mill  Time  of  Entry. 


3 


3 
sr 


Aninuiit  iif 

ralriidnr 

iiiiiiilli,  share 

or  voyage. 


Wilfiess  t<i 
tf!igiinliire. 


Name  of 

!ihi|)  in 

which  the 

seaman  last 

Bervod. 


Note.  —  Any  embezzlement  or  wilful  or  negligent  loss  or  destruction  of 
any  part  of  the  ship's  cargo  or  stores  may  be  made  good  to  the  owner  out 
of  the  wages  (so  far  as  they  will  extend)  of  the  seaman  guilty  of  the  same; 
and  if  any  seaman  shall  enter  himself  as  qualified  for  a  duty  to  which  he 
shall  prove  to  be  not  competent,  he  will  be  subject  to  a  reduction  of  the  rate 
of  wages  hereby  agreed  for  in  proportion  to  his  incompetency. 


BRITISH   SHIPPING   ARTICLES    FOR   THE    FISHERIES,    &C.,   REQUIRED   BY   THE 

SAME    ACT. 


An  agreement  made,  pursuant  to  the  directions  of  an  act  of  Parliament 
passed  in  the  sixth  year  of  the  reign  of  His  Majesty  King  William  the 
Fourth,  between  the  master  of  the  ship  ,  of 

the  port  of  ,  and  of  the  burthen  of         tons,  and  the  several 

persons  whose  names  are  subscribed  hereto. 

It  is  agreed  by  and  on  the  part  of  the  said  persons,  and  they  severally  hereby 
engage,  to  serve  on  board  the  said  ship  in  the  said  several  capacities  against 
their  respective  names  expressed,  which  ship  is  to  be  employed  in  {here 
the  nature  of  the  ship's  employment  is  to  be  described,  whether  in  the  fisheries, 
on  the  coast,  or  in  trading  from  one  port  in  the  United  Kingdom  to  another, 
or  to  any  of  the  islands  of  Jersey,  Guernsey,  Alderney,  Sark,  and  Man,  or  to 
any  port  on  the  continent  of  Europe,  between  the  river  Elbe  inclusive  and 
Brest ;]  and  the  said  crew  further  engage  to  conduct  themselves  in  aa 
orderly,  faithful,  honest,  careful,  and  sober  manner,  and  to  be  at  all  times 
diligent  in  their  respective  duties  and  stations,  and  to  be  obedient  to  the 
lawful  commands  of  the  master  in  every  thing  relating  to  the  said  ship, 
and  the  materials,  stores,  and  cargo  thereof,  whether  on  board  such  ship, 
in  boats,  or  on  shore  [here  may  be  inserted  any  other  clauses  tvhich  the  parties 
may  think  proper  to  be  introduced  into  the  agreement,  provided  that  the  same 
he  not  contrary  to  or  inconsistent  with  the  provisions  and  spirit  of  this  act.] 
In  consideration  of  which  services,  to  be  duly,  honestly,  carefully,  and 
faithfully  performed,  the  said  master  doth  hereby  promise  to  pay  to  the  said 


APPEJNDIX    III. 


399 


crew,  by  way  of  compensation  or  wages,  the  amount  against  their  names 
respectively  expressed  :  provided  always,  and  it  is  hereby  declared,  that  no 
seaman  shall  be  entitled  to  his  discharge  from  the  ship  during  any  voyage 
in  which  she  may  be  engaged,  nor  at  any  other  than  a  port  in  the  United 
Kingdom.  In  witness  whereof  the  said  parties  have  hereto  subscribed  their 
names  on  the  days  against  their  respective  signatures  mentioned. 


Place  and  Time  of  Entry. 

2 

> 

*T3 

P 

Amount  of 

Witness  to 

Name  of 

a 

s 

? 

S9 

s^ 

wases  per 
calendar 

Signature. 

shi|i  in 

whicli  the 

o 

2S 

g: 

^ 

2 

o 

•< 

month,  share 

seaman  last 

v: 

= 

s 

a 

B 

a 

or  voyage. 

served. 

rr 

5 

09 

• 

Note. — Any  embezzlement  or  wilful  or  negligent  loss  or  destruction  of 
any  part  of  the  ship's  cargo  or  stores  may  be  made  good  to  the  owner  out 
of  the  wages  (so  far  as  they  will  extend)  of  the  seamen  guilty  of  the  same ; 
and  if  any  seaman  shall  enter  himself  as  qualified  for  a  duty  to  which  he 
shall  prove  to  be  not  competent,  he  will  be  subject  to  a  reduction  of  the 
rate  of  wages  hereby  agreed  for  in  proportion  to  his  incompetency. 


III. 

STATUTES   OF   THE   UNITED   STATES. 

20th  July,  1790. 

Chap.  5G.  [29.]    An  act  for  the  government  and  regulation  of  seamen  in  the 

merchant's  service. 

%\.  Be  it  enacted,  <S^^c.  That  from  and  after  the  first  day  of  De- 
cember next,  every  master  or  commander  of  any  ship  or  vessel  bound 
from  a  port  in  the  United  States  to  any  foreign  port,  or  of  any  ship 
or  vessel  of  the  burthen  of  fifty  tons  or  upwards,  bound  fron)  a  port 
in  one  state  to  a  port  in  any  oilier  than  an  adjoinin-T  stale,  shall,  be- 
fore he  proceed  on  such  voyage,  make  an  agreement  in  writino-  or  in 
print,  with  every  seaman  or  mariner  on  board  such  ship  or  vessel 
(except  such  as  shall  be  apprentice  or  servant  to  himself  or  owners) 
declaring  the  voynge  or  voyages,  term  or  terms  of  time,  for  which 
such  seaman  or  mariner  shall  be  shipped.  And  il'  any  masitr  or 
coinmander  of  such  ship  or  vessel,  shall  carry  out  any  seaman   or 


)0()  APPENDIX    Til. 

mariner  (except  apprentices  or  servants  as  aforesaid)  without  such 
contract  or  agreement  being  first  made  and  signed  by  the  seamen 
and  mariners,  sucli  master  or  commander  shall  pay  to  every  such 
seaman  or  mariner,  the  highest  price  or  wages  which  sliall  have  been 
given  at  the  port  or  place  where  such  seaman  or  mariner  shall  have 
been  shipped,  for  a  similar  voyage,  within  three  months  next  before 
the  time  of  such  shipping:  Provided  such  seaman  or  mariner  shall 
perform  such  voyage  :  or  if  not,  then  for  such  time  as  he  shall  con- 
tinue to  do  duty  on  board  such  ship  or  vessel  ;  and  shall,  moreover, 
forfeit  twenty  dollars  for  every  such  seaman  or  mariner,  one  half  to 
the  use  of  the  person  prosecuting  for  the  same,  the  other  half  to  the 
use  of  the  United  States  :  and  such  seaman  or  mariner,  not  havino- 
signed  such  contract,  shall  not  be  bound  by  the  regulations,  nor  sub- 
ject to  the  penalties  and  forfeitures,  contained  in  tliis  act. 

§  2.  That  at  the  foot  of  every  such  contract  there  shall  be  a 
memorandum  in  writing,  of  the  day  and  the  hour  on  which  such 
seaman  or  mariner,  who  shall  so  ship  and  subscribe,  shall  render 
themselves  on  board,  to  begin  the  voyage  agreed  upon.  And  if  any 
such  seaman  or  mariner  shall  neorject  to  render  himself  on  board  the 
ship  or  vessel,  for  which  he  has  shipped,  at  the  time  mentioned  in 
such  memorandum,  and  if  the  master,  commander,  or  other  officer 
of  the  ship  or  vessel,  shall,  on  the  day  on  which  such  neglect  hap- 
pened, make  an  entry  in  the  logbook  of  such  ship  or  vessel,  of  the 
name  of  such  seaman  or  mariner,  and  shall,  in  like  manner,  note  the 
time  that  he  so  neglected  to  render  himself,  (after  the  time  ap- 
pointed,) every  other  seaman  or  mariner  shall  forfeit,  for  every  hour 
which  he  shall  so  neglect  to  render  himself,  one  day's  pay,  accord- 
ing to  the  rate  of  wages  agreed  upon,  to  be  deducted  out  of  his 
wages.  And  if  any  such  seaman  or  mariner  shall  wholly  neglect  to 
render  himself  on  board  of  such  ship  or  vessel,  or  having  rendered 
himself  on  board,  shall  afterwards  desert  and  escape,  so  that  the  ship 
or  vessel  proceed  to  sea  without  him,  every  such  seaman  or  mariner 
shall  forfeit  and  pay  to  the  master,  owner,  or  consignee,  of  the  said 
ship  or  vessel,  a  sum  equal  to  that  which  shall  have  been  paid  to  him 
by  advance  at  the  time  of  signing  the  contract,  over  and  besides  the 
sum  so  advanced,  both  which  sums  shall  be  recoverable  in  any  court, 
or  before  any  justice  or  justices  of  any  state,  city,  town,  or  county, 
within  the  United  States,  which,  by  the  laws  thereof,  have  cognizance 


APPENDIX    III.  401 

of  debts  of  equal  value,  against  such  seaman  or  mariner,  or  his 
surety  or  sureties,  in  case  he  shall  have  given  surety  to  proceed  the 
voyage. 

§  3.  That  if  the  mate,  or  first  officer  under  the  master,  and  a  ma- 
jority of  the  crew  of  any  ship  or  vessel,  bound  on  a  voyage  to  any 
foreign  port,  shall,  after  the  voyage  is  begun,  (and  before  the  ship  or 
vessel  shall  have  left  the  land,)  discover  that  the  said  ship  or  vessel 
is  too  leaky,  or  is  otherwise  unfit  in  her  crew,  body,  tackle,  apparel, 
furniture,  provisions,  or  stores,  to  proceed  on  the  intended  voyage, 
and  shrill  require  such  unfitness  to  be  inquired  into,  the  master  or 
commander  shall,  upon  the  request  of  the  said  mate  (or  other  officer) 
and  such  majority,  forthwith  proceed  to  or  stop  at  the  nearest  and 
most  convenient  port  or  place  where  such  inquiry  can  be  made,  and 
shall  there  apply  to  the  judge  of  the  district  court,  if  he  shall  there 
reside,  or  if  not,  to  some  justice  of  the  peace  of  the  city,  town,  or 
place,  taking  with  him  two  or  more  of  the  said  crew,  who  shall  have 
made  such  request ;  and  thereupon  such  judge  or  justice  is  hereby 
authorized  and  required  to  issue  his  precept,  directed  to  three  per- 
sons in  the  neifrhborhood,  the  most  skilful  in  maritime  affairs  that 
can  be  procured,  requiring  them  to  repair  on  board  such  ship  or 
vessel,  and  to  examine  the  same,  in  respect  to  the  defects  and  insuffi- 
ciencies complained  of,  and  to  make  report  to  him,  the  said  judge 
or  justice,  in  writing,  under  their  hands,  or  the  hands  of  two  of  them, 
whether  in  any,  or  in  what,  respect  the  said  ship  or  vessel  is  unfit  to 
proceed  on  the  intended  voyage,  and  what  addition  of  men,  provi- 
sions, or  stores,  or  what  repairs  or  alterations  in  the  body,  tackle,  or 
apparel,  will  be  necessary;  and  upon  such  report,  the  said  judge  or 
justice  shall  adjudge  and  determine,  and  shall  endorse  on  the  said 
report  his  judgment,  whether  the  said  ship  or  vessel  is  fit  to  proceed 
on  the  intended  voyage  ;  and  if  not,  whether  such  repairs  can  be 
made,  or  deficiencies  supplied,  where  the  ship  or  vessel  then  lays,  or 
whether  it  be  necessary  for  the  said  ship  or  vessel  to  return  to  the 
port  from  whence  she  first  sailed,  to  he  there  refitted  ;  and  the  mas- 
ter arjd  crew  shall  in  all  things  conform  to  the  said  judgment;  and 
the  master  or  commander  shall,  in  the  first  instance,  pay  all  iIh;  costs 
of  such  view,  report,  and  judgment,  to  he  taxed  :ni(l  alloui d  (Ui  a 
fair  copy  thereof,  certified  by  the  said  judge  or  justice.  r)iii  il'  the 
complaint  of  the  said   crew  shall   appear,  upon   the  said    report   and 

51 


402  AITE.NDIX    111. 

jii(l_!j;mcnt,  to  liavc  been  w  illiout  fouiulation,  then  the  said  master,  or 
tlif  owiiiM'  or  coiisitriicc  of  siicli  sliip  or  vessel,  shall  deduct  the 
amount  thereof,  and  of  reasonable  daniages  fur  the  detention  (to  be 
ascertained  by  the  said  judge  or  justice)  out  of  the  wages  growing 
due  to  the  complaining  seamen  or  mariners.  And  if,  afler  such 
judgment,  such  ship  or  vessel  is  fit  to  proc(;ed  on  iier  intended  voyage, 
or  after  procuring  such  men,  provisions,  stores,  repairs,  or  altera- 
tions, as  may  be  directed,  the  said  seamen  or  mariners,  or  either  of 
them,  shall  refuse  to  proceed  on  the  voyage,  it  shall  and  may  be  liiw- 
ful  for  any  justice  of  the  peace  to  commit,  by  warrant  under  his  hand 
and  seal,  every  such  seaman  or  mariner  (who  shall  so  refuse)  to  the 
common  jail  of  the  county,  theTe  to  remain  without  bail  or  mainprise, 
until  he  shall  have  paid  double  the  sum  advanced  to  him  at  the  time 
of  subscribing  the  contract  for  the  voyage,  together  with  such  rea- 
sonable costs  as  shall  be  allowed  by  the  said  justice,  and  inserted  in 
the  said  warrant,  and  the  surety  or  sureties  of  such  seaman  or  mari- 
ner (in  case  he  or  they  shall  have  given  any)  shall  remain  liable  for 
such  payment;  nor  shall  any  such  seaman  or  mariner  be  discharged 
upon  any  writ  of  habeas  corpus,  or  otherwise,  until  such  sum  be 
paid  by  him  or  them,  or  his  or  their  surety  or  sureties,  for  want  of 
any  form  of  commitment  or  other  previous  proceedings.  Provided, 
that  sullicient  matter  shall  be  made  to  appear,  upon  the  return  of 
such  habeas  corpus  and  an  examination  then  to  be  had,  to  detain 
him  for  the  causes  hereinbefore  assicrned. 

§  4.  That  if  any  person  shall  harbor,  or  secrete,  any  seaman  or 
mariner,  belonging  to  any  ship  or  vessel,  knowing  them  to  belong 
thereto,  every  such  person,  on  conviction  thereof,  before  any  court 
in  the  city,  town  or  county,  where  he,  she,  or  they,  may  reside,  shall 
forfeit  and  pay  ten  dollars  for  every  day  which  he,  she, or  they,  shall 
continue  so  to  harbor  or  secrete  such  seaman  or  mariner,  one  half  to 
the  use  of  the  person  prosecuting  for  the  same,  the  other  half  to  the 
use  of  the  United  Slates;  and  no  sum  exceeding  one  dollar,  shall  be 
recoverable  from  any  seaman  or  mariner  by  any  one  person,  for  any 
debt  contracted  during  the  time  such  seaman  or  mariner  shall  ac- 
tually belong  to  any  ship  or  vessel,  until  the  voyage,  for  which  such 
seaman  or  mariner  engaored,  shall  be  ended. 

<§  5.  That  if  any  seaman  or  mariner  who  shall  have  subscribed 
such  contract  as  is  hereinbefore  described,  shall  absent  himself  from 


APPENDIX  III.  403 

on  board  the  ship  or  vessel,  in  whicli  he  shall  so  iiave  shipped,  with- 
out leave  of  the  master  or  officer  commanding  on  board  ;  and  the  mate, 
or  other  officer  having  charge  of  tlie  logbook,  shall  make  an  entry 
therein  of  the  name  of  such  seaman  or  mariner,  on  the  day  on  which 
he  shall  so  absent  himself,  and  if  such  seaman  or  mariner  shall  re- 
turn to  his  duty  within  forty-eight  hours,  such  seaman  or  mariner 
shall  forfeit  three  days'  pay  for  every  day  which  he  shall  so  absent 
himself,  to  be  deducted  out  of  his  wages  :  but  if  any  seaman  or  mari- 
ner shall  absent  himself  for  more  than  fortv-eioht  hours  at  one  time, 
he  shall  forfeit  all  the  wages  due  to  him,  and  all  his  goods  and  chat- 
tels which  were  on  board  the  said  ship  or  vessel,  or  in  any  store 
where  they  may  have  been  lodged  at  the  time  of  his  desertion,  to  the 
use  of  the  owners  of  the  ship  or  vessel,  and  moreover  shall  be  liable 
to  pay  to  him  or  them,  all  damages  which  he  or  they  may  sustain  by 
being  obliged  to  hire  other  seamen  or  mariners  in  his  or  their  place; 
and  such  damages  shall  be  recovered  with  costs,  in  any  court,  or  be- 
fore any  justice  or  justices,  having  jurisdiction  of  the  recovery  of 
debts  to  the  value  of  ten  dollars,  or  upwards. 

§  6.  That  every  seaman  or  mariner  shall  be  entitled  to  demand 
and  receive,  from  the  master  or  commander  of  the  ship  or  vessel  to 
which  they  belong,  one  third  part  of  the  wages  which  shall  be  due 
to  him,  at  every  port  where  such  ship  or  vessel  shall  unlade  and  de- 
liver her  cargo  before  the  voyage  be  ended,  unless  the  contrary  be 
expressly  stipulated  in  the  contract  :  and  as  soon  as  the  voyage  is 
ended,  and  the  cargo  or  ballast  be  fully  discharged  at  the  last  port 
of  delivery,  every  seaman  or  mariner  shall  be  entitled  to  the  wages 
which  shall  be  then  due  according  to  his  contract  :  and  if  such 
wages  shall  not  be  paid  within  ten  days  after  such  discharge,  or  if 
any  dispute  shall  arise  between  the  master  and  seamen  or  mariners, 
touching  the  said  wages,  it  shall  be  lawful  for  the  judge  of  the  dis- 
trict where  the  said  ship  or  vessel  shall  be,  or  in  case  his  residence 
be  more  than  three  miles  from  the  place,  or  of  his  absence  from  the 
place  of  his  residence,  then,  for  any  judge  or  justice  of  the  peace, 
to  summon  the  master  of  such  ship  or  vessel  to  appear  before  him, 
to  show  cause  why  process  should  not  issue  against  such  ship  or  ves- 
sel, her  tackle,  furniture,  and  apparel,  according  to  the  course  of  ad- 
miralty courts,  to  answer  for  the  said  wages  :  and  if  the  master  shall 
neglect  to  appear,  or  a])pcaring,  shall  not  show  that  llir  wajres  arc 
paid,  or  otherwi.se  satisfied  or  forfeited,  and  if  the  matter  in  dispute 


401  Ari-KNOIK    III. 

sliall  not  be  forthwith  settled,  in  such  case  tlie  judge  or  justice  shall 
certify  to  the  clerk  of  the  court  of  llie  district,  lli.il  there  is  suflicieut 
cause  of  complaint  whereon  to  found  admiralty  process,  and  there- 
upon the  clerk  of  such  court  shall  issue  process  against  the  said  ship 
or  vessel,  and  the  suit  sliali  bo  proceeded  on  in  the  said  court,  and 
filial  judgment  be  given  according  to  the  course  of  admiralty  courts 
in  such  cases  used  ;  and  in  such  suit  all  the  seamen  or  mariners 
(having  cause  of  complaint  of  the  like  kind  against  the  same  ship  or 
vessel)  shall  be  joined  as  complainants;  and  it  shall  be  incumi)cnt 
on  the  master  or  commander  to  produce  the  contract  and  logbook, 
if  required,  to  ascertain  any  matters  in  dispute;  otherwise  the  com- 
plainants shall  be  permitted  to  state  the  contents  thereof,  and  the 
proof  of  the  contrary  shall  lie  on  the  master  or  commander;  but 
nothing  herein  contained  shall  prevent  any  seaman  or  mariner  from 
having  or  maintaining  any  action  at  common  law,  for  the  recovery 
of  his  wages,  or  from  immediate  process  out  of  any  court  having  ad- 
miralty jurisdiction,  wherever  any  ship  or  vessel  may  be  found,  in 
case  she  shall  have  left  the  port  of  delivery  where  her  voyage  ended 
before  payment  of  the  wages,  or  in  case  she  shall  be  about  to  pro- 
ceed to  sea  before  the  end  of  the  ten  days  next  after  the  delivery  of 
her  cargo  or  ballast, 

§  7.  That  if  any  seaman  or  mariner,  who  shall  have  signed  a  con- 
tract to  perform  a  voyage,  shall,  at  any  port  or  place,  desert,  or  shall 
absent  himself  from  such  ship  or  vessel,  without  leave  of  the  master, 
or  officer  commanding  in  the  absence  of  the  master,  it  shall  be  law- 
ful  for  any  justice  of  peace  within  the  United  States  (upon  the 
complaint  of  the  master)  to  issue  his  warrant  to  apprehend  such  de- 
serter and  bring  him  before  such  justice  ;  and  if  it  shall  then  appear, 
by  due  proof,  that  he  has  signed  a  contract  within  the  intent  and 
meaning  of  this  act,  and  that  the  voyage  agreed  for  is  not  finished, 
altered,  or  the  contract  otherwise  dissolved,  and  that  such  seaman  or 
njariner  has  deserted  the  ship  or  vessel,  or  absented  himself  without 
leave,  the  said  justice  shall  commit  him  to  the  house  of  correction, 
or  common  jail  of  the  city,  town,  or  place,  there  to  remain  until  the 
said  ship  or  vessel  shall  be  ready  to  proceed  on  her  voyage,  or 
till  the  master  shall  require  his  discharge,  and  then  to  be  delivered 
to  the  said  master,  he  paying  all  the  cost  of  such  commitment, 
and  deducting  the  same  out  of  the  wages  due  to  such  seaman  or 
mariner. 


APPENDIX   III.  405 

^  8.  Thai  every  ship  or  vessel,  belonging  to  a  citizen  or  citizens 
of  the  United  States,  of  the  burthen  of  one  hundred  and  fifty  tons 
or  upwards,  navigated  by  ten  or  more  persons  in  the  whole,  and 
bound  on  a  voyage  without  the  limits  of  the  United  Slates,  shall  be 
provided  with  a  chest  of  medicines,  put  up  by  some  apotliecary  of 
known  reputation,  and  accompanied  by  directions  for  administering 
the  same  ;  and  the  said  medicines  shall  be  exaniined  by  the  same  or 
some  other  apothecary,  once,  at  least,  in  every  year,  and  supplied 
with  fresh  medicines  in  the  place  of  such  as  shall  have  been  used  or 
spoiled  ;  and  in  default  of  having  such  medicine  chest  so  provided, 
and  kept  fit  for  use,  the  master  or  commander  of  such  ship  or  vessel 
shall  provide  and  pay  for  all  such  advice,  medicine,  or  attendance  of 
physicians,  as  any  of  the  crew  shall  stand  in  need  of  in  case  of  sick- 
ness, at  every  port  or  place  where  the  ship  or  vessel  may  touch  or 
trade  at  during  the  voyage,  without  any  deduction  from  the  wages  of 
such  sick  seaman  or  mariner. 

§  9.  That  every  ship  or  vessel,  belonging  as  aforesaid,  bound  on 
a  voyage  across  the  Atlantic  ocean,  shall,  at  the  time  of  leaving  the 
last  port  from  whence  she  sails,  have  on  board,  well  secured  under 
deck,  at  least  sixty  gallons  of  water,  one  hundred  pounds  of  salted 
flesh  meat,  and  one  hundred  pounds  of  wholesome  ship-bread,  for 
every  person  on  board  such  ship  or  vessel,  over  and  besides  such 
other  provisions,  stores,  and  live  stock,  as  shall,  by  the  master  or 
passengers,  be  put  on  board,  and  in  like  proportion  for  shorter  or 
longer  voyages;  and  in  case  the  crew  of  any  ship  or  vessel,  which 
shall  not  have  been  so  provided,  shall  be  put  upon  short  allowance 
in  water,  flesh,  or  bread,  during  the  voyage,  the  master  or  owner  of 
euch  ship  or  vessel  shall  pay,  to  each  of  the  crew,  one  day's  wages 
beyond  the  wages  agreed  on,  for  every  day  they  shall  be  so  put  to 
short  allowance,  to  be  recovered  in  the  same  manner  as  their  stipu- 
lated wages.     [Approver/,  Jiih/  20,  1"00.] 


28//1  May,  1700. 
Chap.  [Hfi.]   An  act  for  the  rdiof  and  protection  of  American  scnmcn. 

^  4.  That   the   collector  of  every  di.strict  shall    keep  a  book   or 
books,  in  which,  at   the    rtrjiiest   of  any  scamati,  being  a  citizen  of 


406  AIM'F.NOIX    111. 

the  United  States  of  America,  and  producing  proof  of  his  citizenship, 
aiitlicnticati-d  in  the  in:imi(M-  lurciiiaricr  directed,  he  siiall  enter  tlic 
name  of  such  seaman,  and  shall  deliver  to  Iiini  a  ccrtilicalo,  in  the 
followiniT  form,  tliat  i-s  to  sav  :  "  I.  A.  B.,  collector  of  the  district  of 
D,  do  licrebv  certify  that  J'i  V,  an  American  seaman,  aged 
years,  or  thereabouts,  of  the  height  of  feet  inches,  [describing 
the  said  seaman  as  particularly  as  may  be]  has,  this  day,  produced 
to  me  proof,  in  the  manner  directed  in  the  act,  entitled  '  An  act  for 
the  relief  and  protection  of  American  seamen;'  and,  pursuant  to 
the  said  act,  I  do  hereby  certify,  that  the  said  E  F  is  a  citizen  of 
the  United  States  of  America  :  in  witness  whereof  I  have  hereunto 
set  my  hand  and  seal  of  oflice,  this  day  of  ."     And 

it  shall  be  the  duty  of  the  collectors  aforesaid,  to  fde  and  preserve 
the  proofs  of  citizenship,  produced  as  aibresaid  :  and  for  each  cer- 
tificate delivered,  as  aforesaid,  the  said  collecter  shall  be  entitled  to 
receive,  from  the  seaman  applying  for  the  same,  the  sum  of  twenty- 
five  cents. 

§  5.  And,  in  order  that  full  and  speedy  information  may  be  ob- 
tained of  the  seizure  or  detention,  by  any  foreign  power,  of  any 
seamen  employed  on  board  any  ship  or  vessel  of  the  United  States, 
Be  it  further  enacted,  that  it  shall,  and  hereby  is  declared  to  be  the 
duty  of  the  master  of  every  sliip  or  vessel  of  the  United  States,  any 
of  the  crew  whereof  shall  have  been  impressed  or  detained  by  any 
foreign  power,  at  the  first  port  at  which  such  ship  or  vessel  shall  ar- 
rive, if  such  impressment  or  detention  happened  on  the  high  seas, 
or  if  tlie  same  happened  within  any  foreign  port,  then  in  the  port  in 
which  the  same  happened,  immediately  to  make  a  protest,  stating  the 
manner  of  such  impressment  or  detention  ;  by  whom  made,  together 
with  the  name  and  place  of  residence  of  the  person  impressed  or 
detained  :  distinguishing,  also,  whether  he  was  an  American  citizen  ; 
and  if  not,  to  what  nati,on  he  belonged.  And  it  shall  be  the  duty  of 
such  master,  to  transmit  by  post,  or  otherwise,  every  such  protest 
made  in  a  foreign  country,  to  the  nearest  consul  or  agent,  or  to  the 
minister  of  the  United  States  resident  in  such  country,  if  any  such 
there  be  ;  preserving  a  duplicate  of  such  protest,  to  be  by  him  sent, 
immediately  after  his  arrival  within  the  United  States,  to  the  secre- 
tary of  state,  together  with  information  to  whom  the  original  pro- 
test was  transmitted  :    and  in  case  such  protest  shall  be  made  within 


APPENDIX  III.  407 

the  United  States,  or  in  any  foreign  country,  in  which  no  consul,  agent 
or  minister,  of  the  United  States  resides,  the  same  shall,  as  soon 
thereafter  as  practicable,  be  transmitted,  by  such  master,  by  post  or 
otherwise,  to  the  secretary  of  state. 

§  6.  That  a  copy  of  this  law  be  transmitted,  by  the  secretary  of 
state,  to  each  of  the  ministers  and  consuls  of  the  United  States  resi- 
dent in  foreign  countries,  and,  by  the  secretary  of  the  treasury,  to 
the  several  collectors  of  the  districts  of  the  United  States,  whose 
duty  it  is  hereby  declared  to  be,  from  time  to  time,  to  make  known 
the  provisions  of  this  law  to  all  masters  of  ships  and  vessels  of  the 
United  States  entering  or  clearing  at  their  several  offices.  And  the 
master  of  every  such  ship  or  vessel  shall,  before  he  is  admitted  to  an 
entry,  by  any  such  collector,  be  required  to  declare  on  oath,  whether 
any  of  the  crew  of  the  ship  or  vessel  under  his  command  have  been 
impressed  or  detained,  in  the  course  of  his  voyage,  and  how  far  he 
has  complied  with  the  directions  of  this  act  :  and  every  such  master 
as  shall  wilfully  neglect  or  refuse  to  make  the  declarations  herein 
required,  or  to  perform  the  duties  enjoined  by  this  act,  shall  forfeit 
and  pay  the  sum  of  one  hundred  dollars.  And  it  is  hereby  declared 
to  be  the  duty  of  every  such  collector,  to  prosecute  for  any  forfeiture 
that  may  be  incurred  under  this  act. 

<S  7.  That  the  collector  of  every  port  of  entry  in  the  United  States 
shall  send  a  list  of  the  seamen  registered  under  this  act,  once  every 
three  months,  to  the  secretary  of  state,  together  with  an  account  of 
such  impressments  or  detentions  as  shall  appear  by  the  protests  of 
the  masters  to  have  taken  place,     [ylj^jjroved,  May  28,  171)0.] 


IGlhJuIi/,  1798. 
Chap.  [01.]  An  act  for  the  relief  of  sick  and  disabled  seamen. 

^  I.  lie  it  cnactal,  <iyr.  That  from  and  after  the  first  day  of  Sep- 
tember next,  the  master  or  owner  of  every  ship  or  vessel  of  the 
United  States,  arriving  from  a  foreign  port  into  any  port  of  the 
United  States,  shall,  before  such  ship  or  vessel  shall  bo  adniitted  to 
an  entry,  render  to  the  collector  a  true  account  of  the  number  of 
seamen  that  shall  have  been  employed  on  board  such  vessel  since  she 
was   last  entered  at  any  port  in    the  United  States,  and  bhall  pay,  to 


408  APPENDIX    111. 

the  said  collector,  ;U  tlic  rate  of  twenty  cents  per  month  for 
every  seaman  so  employed  ;  which  sum  he  is  hereby  authorized  to 
retain  out  of  tlie  wages  of  such  seamen. 

§  '■Z.  That  from  and  after  the  first  day  of  September  nc.\t,  no  col- 
lector shall  grant  to  any  sliip  or  vessel  whose  enrollment  or  license 
for  carrying  on  the  coasting  trade  has  expired,  a  new  enrollment  or 
license,  before  the  master  of  such  ship  or  vessel  shall  lirst  rctidi-r  a  true 
account  to  the  colhxlor,  of  the  number  of  seamen,  and  (he  time 
they  have  severally  been  employed  on  board  such  ship  or  vessel, 
during  the  continuance  of  the  license  which  has  so  expired,  and  pay 
to  such  collector  twenty  cents  per  month  for  every  month  such 
seamen  have  been  severally  employed  as  aforesaid  ;  which  sum  the 
said  master  is  hereby  authorized  to  retain  out  of  the  wages  of  such 
seamen.  And  if  any  such  master  shall  render  a  false  account  of  the 
number  of  men,  and  the  length  of  time  they  have  severally  been  em- 
ployed, as  is  herein  required,  he  shall  forfeit  and  pay  one  Imndred 
dollars. 

<5i  3.  That  it  shall  be  the  duty  of  the  several  collectors  to  make  a 
quarterly  return  of  the  sums  collected  by  them,  respectively,  by  vir- 
tue of  this  act,  to  the  secretary  of  the  treasury  ;  and  the  president 
of  the  United  States  is  hereby  authorized,  out  of  the  same,  to  pro- 
vide for  the  temporary  relief  and  maintenance  of  sick,  or  disabled 
seamen,  in  the  hospitals  or  other  proper  institutions  now  established 
in  the  several  ports  of  the  United  States,  or  in  ports  where  no  such 
institutions  exist,  then  in  such  other  manner  as  he  shall  direct  :  Pro- 
vided, that  the  moneys  collected  in  any  one  district,  shall  be  ex- 
pended within  the  same. 

^  4.  That  if  any  surplus  shall  remain  of  the  moneys  to  be  collected 
by  virtue  of  this  act,  after  defraying  the  expense  of  such  temporary 
relief  and  support,  that  the  same,  together  with  such  private  dona- 
tions as  may  be  made  for  that  i)urpose,  (which  the  president  is  here- 
by authorized  to  receive,)  shall  be  invested  in  the  stock  of  the  United 
States,  under  the  direction  of  the  president ;  and  when,  in  his  opinion, 
a  sufficient  fund  shall  be  accumulated,  he  is  hereby  authorized  to 
purchase  or  receive  cessions  or  donations  of  ground  or  buildings,  in 
the  name  of  the  United  States,  and  to  cause  buildings,  when  neces- 
sary, to  be  erected  as  hospitals  for  the  accommodation  of  sick  and 
disabled  seamen. 


APPENDIX  HI.  409 

<^  5.  That  the  president  of  the  United  States  be,  and  he  is  hereby, 
authorized  to  nominate  and  appoint,  in  such  portsof  the  United  States 
as  he  may  think  proper,  one  or  more  persons,  to  be  called  directors 
of  the  niarine  hospital  of  the  United  Stales,  whose  duty  it  shall  be  to 
direct  the  expenditure  of  the  fund  assigned  for  their  respective  ports, 
according  to  the  third  section  of  this  act;  to  provide  for  the  accom- 
modation of  sick  and  disabled  seamen,  under  such  general  instruc- 
tions as  slnll  be  given  by  the  president  of  the  United  States  for  that 
purpose,  and  also,  subject  to  the  like  general  instructions,  to  direct 
and  crovern  such  hospitals,  as  the  president  may  direct  to  be  built  in 
the  respective  ports:  and  that  the  said  d  rectors  shall  hold  their  of- 
fices during  the  pleasure  of  the  president,  who  is  authorized  to  fill 
up  all  vacancies  that  may  be  occasioned  by  the  death  or  removal  of 
any  of  the  persons  so  to  be  appointed.  And  the  said  directors  shall 
render  an  account  of  the  moneys  received  and  expended  by  them, 
once  in  every  quarter  of  a  year,  to  the  secretary  of  the  treasury,  or 
such  other  person  as  the  president  shall  direct;  but  no  other  allow- 
ance or  compensation  shall  be  made  to  the  said  directors,  except  the 
payment  of  such  expenses  as  they  may  incur  in  the  actual  discharge 
of  the  duties  required  by  this  act.     [Apjproved,  July  16,  1798.] 


3rZ  Mat/,  1802. 

Chap.  [51.]     An  act  to  amend  an  act,  entitled  "  An  act  for  the  relief  of  sick  and 

disabled  seamen,"  and  for  otlicr  purposes. 

§  1.  Ue  it  enattrd,  ^'r.  That  the  moneys  heretofore  collected  in 
pursuance  of  the  several  acts  "  lor  the  relief  of  sick  aiul  disabled 
seamen,"  and  at  present  unexpended, together  with  the  moneys  here- 
after to  be  collected  by  authority  of  the  beforeinentioned  acts,  shall 
constitute  a  general  fund,  which  the  president  of  the  United  States 
shall  use  and  employ,  as  circumstances  shall  rcfjuire,  for  the  benefit 
and  convenience  of  sick  and  disabled  American  seamen  :  Provided, 
That  the  sum  of  fifteen  thousand  dollars  be,  and  the  same  is  liercby, 
appropriated  for  the  erection  of  an  hospital  in  the  district  of  Massa- 
chusetts. 

§  2.  That  it  shall  be  lawful  for  the  president  of  llio  United  States 
to  cause  such  measures  to  be  taken  as,  in  his  opinion,  may  be  expe- 

52 


410  ArrENDix  m. 

dicnt  for  providinj;  cnnvcnirnt  accommodations,  medical  assistance, 
necessary  attendance,  and  supplies,  for  llie  relief  of  sick  or  disabled 
seamen  of  the  United  Slates,  ulio  may  l>o  at  or  near  the  port  of 
New  Orleans,  in  case  the  same  can  be  done  with  the  assent  of  the 
government  having  jurisdiction  over  the  i)()rt  :  and  for  this  purpose, 
to  establish  such  rognlations,  and  to  authorize  the  employment  of 
such  persons,  as  he  may  judge  proper;  and  that,  for  defraying  the 
expense  thereof,  a  sum,  not  exceeding  three  thousand  dollars,  be 
paid  out  of  any  moneys  arising  from  the  so.id  fund,  not  otherwise 
appropriated. 

§  3.  That  from  and  after  the  thirtieth  day  of  June  next,  the  mas- 
ter of  every  boat,  raft,  or  Hat,  belonging  to  any  citizen  of  the  United 
States,  which  shall  go  down  the  Mississippi,  with  intention  to  pro- 
ceed to  New  Orleans,  shall,  on  his  arrival  at  fort  Adams,  render  to 
th  collector  or  naval  oflicer  thereof,  a  true  account  of  the  number 
of  persons  employed  on  board  such  boat,  raft,  or  flat,  and  the  time 
that  each  person  has  been  so  employed,  and  shall  pay,  to  the  said 
collector  or  naval  officer,  at  the  rate  of  twenty  cents  per  month,  for 
every  person  so  employed  ;  which  sum  he  is  hereby  authorized  to 
retain  out  of  the  wages  of  such  person  :  and  the  said  collector  or 
naval  officer  shall  not  give  a  clearance  for  such  boat,  raft,  or  flat,  to 
proceed  on  her  voyage  to  New  Orleans,  until  an  account  be  ren- 
dered to  him  of  the  number  of  persons  employed  on  board  such 
boat,  raft,  or  flat,  and  the  money  paid  to  him  by  the  master  or  owner 
thereof:  and  if  any  such  master  shall  render  a  false  account  of  the 
number  of  persons,  and  the  length  of  time  they  have  severally  been 
employed,  as  is  herein  required,  he  shall  forfeit  and  pay  fifly  dollars, 
which  shall  be  applied  to,  and  shall  make  a  part  of,  the  said  general 
fund,  for  the  purposes  of  this  act :  Provided,  That  all  persons  em- 
ployed in  navigating  any  such  boat,  raft,  or  flat,  shall  be  considered 
as  seamen  of  the  United  States,  and  entitled  to  the  relief  extended  by 
law  to  sick  and  disabled  seamen. 

§  4.  That  the  president  of  the  United  States  be,  and  he  is  here- 
by, authorized  to  nominate  and  appoint,  for  the  port  of  New  Or- 
leans, a  fit  person  to  be  director  of  the  marine  hospital  of  the  United 
States,  whose  duties  shall  be,  in  all  instances,  the  same  as  the 
directors  of  the  marine  hospitals  of  the  United  States,  as  directed 
and  required  by  the  act,  entitled  "  An  act  for  the  relief  of  sick  and 
disabled  seamen." 


APPENDIX  III.  41 1 

§  5.  That  each  and  every  director  of  the  marine  hospitals  within 
the  United  States,  shall,  if  it  can  with  convenience  be  done,  admit 
into  the  hospital  of  which  he  is  director,  sick  foreign  seamen,  on 
the  application  of  the  commander  of  any  foreign  vessel  to  which 
such  sick  seaman  may  belong;  and  each  seaman  so  admitted  shall 
be  subject  to  a  charge  of  seventy-five  cents  per  day  for  each  day  he 
may  remain  in  the  hospital,  the  payment  of  which  the  master  or 
commander  of  such  foreitrn  vessel  shall  make  to  the  collector  of  the 
district  in  which  such  hospital  is  situated  :  and  the  collector  shall 
not  grant  a  clearance  to  any  foreign  vessel,  until  the  money  due 
from  such  master  or  commander,  in  manner  and  form  aforesaid, 
shall  be  paid  ;  and  the  director  of  each  hospital  is  hereby  directed, 
under  the  penalty  of  fifty  dollars,  to  make  out  the  accounts  against 
each  foreign  seaman  that  may  be  placed  in  the  hospital,  under  his 
direction,  and  render  the  same  to  the  collector. 

■^i  6.  That  the  collectors  shall  pay  the  money  collected  by  virtue 
of  this  and  the  act  to  which  this  is  an  amendment,  into  the  treasury 
of  the  United  States,  and  be  accountable  therefor,  and  receive  the 
same  commission  thereon,  as  for  other  money  by  them  collected. 

<5>  7.  That  each  and  every  director  of  the  marine  hospitals  shall 
be  accountable,  at  the  treasury  of  the  United  States,  for  the  money 
by  them  received,  in  the  same  manner  as  other  receivers  of  public 
money,  and  for  the  sums  by  them  expended  shall  be  allowed  a  com- 
mission at  the  rate  of  one  per  cent.     [Apjirovtd,  3Iaij  3,  ISO'2.] 


29th  February,  1803. 

Chap.  [02.]     An  act  supplemontary  to  the  "Act  concerning  consuls  and  vice- 
consuls,"  and  for  the  further  protection  of  American  seamen. 

§  I.  7?c  it  rnartrd,  ^^c.  That,  before  a  clearance  be  granted  to 
any  vessel  bounrl  on  a  foreign  voyage,  the  master  thereof  shall  de- 
liver to  the  collector  of  the  customs  a  list,  containing  the  names, 
places  of  birth,  and  residence,  and  a  description  of  the  persons  who 
compose  his  ship's  company,  to  which  list  the  oath  or  aflirmation  of 
the  captain  sli;iil  bo  atincxeil,  tliat  the  said  list  contains  llic  ii.iuk^.s  of 
his  crew,  together  with  the  |)laces  of  their  birth  and  residence,  as 
far  as  he  can  ascertain  them,  and  the  said  collector  shall  deliver  him 


412  APPENDIX   in. 

a  certified  copy  thereof,  for  wliicli  the  collector  sliall  be  entitled  to 
receive  tlic  sum  of  twenty-five  cents;  and  tlic  said  master  shall, 
moreover,  enter  into  bond  with  snllicient  security,  in  the  sum  of 
four  hundred  dollars,  that  he  shall  exhibt  the  aforesaid  certified  copy 
of  the  list  to  the  first  boardin<T  ollicer,  at  the  first  port  in  the  United 
States  at  which  he  shall  arrive,  on  his  return  thereto,  and  then  and 
there  also  produce  the  persons  named  therein,  to  the  said  boarding 
ortlccr,  whose  duty  it  shall  be  to  examine  the  men  with  such  list, 
and  to  r(>port  the  same  to  the  collector;  and  it  shall  be  the  duty  of 
the  collector  at  the  said  port  of  arrival,  (where  the  same  is  diflerent 
from  the  purl  from  which  the  vessel  originally  sailed,)  to  transmit  a 
copy  of  the  list  so  reported  to  him,  to  the  collector  of  the  port  from 
which  said  vessel  originally  sailed  :  Provhlid,  That  the  said  bond 
shall  not  be  forfeited  on  account  of  the  said  master  not  producing  to 
the  first  boarding  officer,  as  aforesaid,  any  of  the  persons  contained 
in  the  said  list,  who  may  be  discharged  in  a  foreign  country,  with  the 
consent  of  the  consul,  vice-consul,  commercial  agent,  or  vice-com- 
mercial agent,  there  residing,  signified  in  writing,  under  his  hand 
and  official  seal,  to  be  produced  to  the  collector  with  the  other  per- 
sons composing  the  crew,  as  aforesaid ;  nor  on  account  of  any  such 
person  dying  or  absconding,  or  being  forcibly  impressed  into  other 
service,  of  which  satisfactory  proof  shall  be  then  also  exhibited  to 
the  collector. 

§  2.  That  it  shall  be  the  duty  of  every  master  or  commander 
of  a  ship  or  vessel,  belonging  to  citizens  of  the  United  States, 
who  sail  from  any  port  of  the  United  Slates,  after  the  first  day 
of  May  next,  on  his  arrival  at  a  foreign  port,  to  deposit  his  regis- 
ter, sea-letter,  and  Mediterranean  passport,  with  the  consul,  vice- 
consul,  commercial  agent,  or  vice-commercial  agent,  (if  any  there 
be  at  such  port ;)  that  in  case  of  refusal  or  neglect  of  the  said 
master  or  commander,  to  deposit  the  said  papers  as  aforesaid,  he 
shall  forfeit  and  pay  five  hundred  dollars,  to  be  recovered  by  the 
said  consul,  vice-consul,  commercial  agent,  or  vice-commercial 
acrent,  in  his  own  name,  for  the  benefit  of  the  United  States,  in  any 
court  of  competent  jurisdiction;  and  it  shall  be  the  duty  of  such 
consul,  vice-consul,  commercial  agent,  or  vice-commercial  agent,  on 
such  master  or  commander  producing  to  him  a  clearance  from  the 
proper  officer  of  the  port  where  his  ship  or  vessel  may  be,  to  deliver 


APPENDIX   III.  413 

to  the  said  master  or  commander  all  of  his  said  pnpers  :  Provided, 
such  master  or  commander  shall  have  complied  with  the  provisions 
contained  in  this  act,  and  those  of  the  ac  lo  v.hich  tliis  is  a  sup- 
plement. 

§  3.  That  whenever  a  ship  or  vessel,  belonging  to  a  citizen  of  the 
United  States,  shall  be  sold  in  a  foreign  country,  and  the  company 
discharged,  or  when  a  seaman  or  mariner,  a  citizen  of  the  Luited 
States,  shall,  with  his  own  consent,  be  discharged  in  a  foreign  coun- 
try, it  shall  be  the  duty  of  the  master  or  commander  to  produce  to 
the  consul,  vice-consul,  commercial  agent,  or  vice-commercial  agent, 
the  list  of  his  ship's  company,  certified  as  aforesaid,  and  to  pay  to 
such  consul,  vice-consul,  commercial  agent,  or  vice-commercial 
agent,  for  every  seaman  or  mariner  so  discharged,  being  designated 
on  such  list  as  a  citizen  of  the  United  States,  three  months'  pay, 
over  and  above  the  wages  which  may  then  be  due  to  such  mariner 
or  seaman,  two  thirds  thereof  to  be  paid  by  such  consul  or  commer- 
cial agent,  to  each  seaman  or  mariner  so  discharged,  upon  his  en- 
gagement on  board  of  any  vessel  to  return  to  the  United  States,  and 
the  other  remaining  third  to  be  retained  for  the  purpose  of  creating 
a  fund  for  the  payment  of  the  passages  of  seamen  or  mariners,  citi- 
zens of  the  United  States,  who  may  be  desirous  of  returning  to  the 
United  States,  and  for  the  maintenance  of  American  seamen  who 
may  be  destitute,  and  may  be  in  such  foreign  port ;  and  the  several 
sums  retained  for  such  fund  shall  be  accounted  for  with  the  treasury 
every  six  months,  by  the  persons  receiving  the  same. 

<§  4.  That  it  shall  be  the  duty  of  the  consuls,  vice-consuls,  com- 
mercial agents,  vice-commercial  agents  of  the  United  States,  from 
time  to  time,  to  provide  for  the  mariners  and  seamen  of  the  United 
States,  who  may  be  found  destitute  within  their  districts,  respectively, 
sufficient  subsistence  and  passages  to  some  port  in  the  United  States, 
in  the  most  reasonable  manner,  at  the  expense  of  the  United  States, 
subject  lo  such  instructions  as  the  secretary  of  state  shall  give;  and 
that  all  masters  and  commanders  of  vessels  belonging  to  citizens  of 
the  United  States,  and  bound  to  some  port  of  the  same,  are  hereby 
required  and  enjoined  to  take  such  mariners  or  seamen  on  board  of 
their  ships  or  vessels,  at  the  request  of  the  said  consul.^,  vice-consuls, 
commercial  agents,  or  vice-commercial  agents,  respectively,  and  to 
transport  them  to  the  port  of  the  United  States  to  which  sucii  ships 


414  APPENDIX  III. 

or  vessels  may  be  bound,  on  such  terms,  not  exceeding  ten  dollars  for 
eacli  person,  as  mav  be  agreed  between  the  said  master  and  consul, 
or  commercial  a<ront.  And  the  said  mariners  or  seamen  sliall,  if 
able,  be  bound  to  do  duty  on  board  such  sliips  or  vessels,  according 
to  llicir  several  abilities:  Providid,  That  no  master  or  captain  of 
any  ship  or  \essel  shall  be  obliged  to  take  a  greater  number  than  two 
men  for  every  one  hundred  tons  burthen  of  the  said  ship  or  vess  I, 
on  aiiv  one  voya;re;  ami  il  any  such  captain  or  master  shall  refuse 
the  same,  on  the  request  or  order  of  the  consul,  vice-consul,  com- 
mercial agent,  or  vice-commercial  agent,  such  captain  or  masier 
shall  forfeit  and  pay  the  sum  of  one  hundred  dollars  for  each  mari- 
ner or  seaman  so  refused,  to  be  recovered,  for  the  benefit  of  the 
United  States,  in  any  court  of  competent  jurisdiction.  And  the 
certificate  of  any  such  consul  or  commercial  agent,  given  under  his 
hand  and  official  seal,  shall  be  prima  facie  evidence  of  such  refusal, 
in  any  court  of  law  having  jurisdiction  for  the  recovery  of  the  pen- 
alty aforesaid. 

§  5.  That  the  seventh  and  eighth  sections  of  the  act,  entitled 
"An  act  concerning  consuls  and  vice-consuls,"  be,  and  the  same 
are  hereby,  repealed  ;  and  that  the  secretary  of  state  be  authorized 
to  reimburse  the  consuls,  vice-consuls,  commercial  agents,  or  vice- 
commercial  agents,  such  reasonable  sums  as  they  may  heretofore 
have  advanced  for  the  relief  of  seamen,  though  the  same  should  ex- 
ceed the  rate  of  twelve  cents  a  man  per  diem. 

§  6.  That  it  shall  and  may  be  lawful  for  every  consul,  vice-consul, 
commercial  agent,  and  vice-commercial  agent,  of  the  United  States, 
to  take  and  receive,  for  every  certificate  of  discharge  of  any  sea- 
man or  mariner  in  a  foreign  port,  fifty  cents;  and  for  commission 
on  paying  and  receiving  the  amount  of  wages  payable  on  the  dis- 
charge of  seamen  in  foreign  ports,  two  and  a  half  per  centum. 

§  7.  That  if  any  consul,  vice-consul,  commercial  agent,  or  vice- 
commercial  agent,  shall,  falsely  and  knowingly,  certify  that  property 
belonging  to  foreigners  is  property  belonging  to  citizens  of  the 
United  States,  he  shall,  on  conviction  thereof,  in  any  court  of  com- 
petent jurisdiction,  forfeit  and  pay  a  fine  not  exceeding  ten  thousand 
dollars,  at  the  discretion  of  the  court,  and  be  imprisoned  for  any 
term  not  exceeding  three  years. 

§  8.  That  if  any  consul,  vice-consul,  commercial   agent,  or  vice- 


APPEXDIX  III.  415 

commercial  agent,  shall  grant  a  passport,  or  other  paper,  certifvincr 
that  any  alien,  knowing  him  or  her  to  he  such,  is  a  citizen  of  the 
United  States,  he  shall,  on  conviction  thereof,  in  any  court  of  com- 
petent jurisdiction,  forfeit  and  pay  a  fine  not  exceding  one  thousand 
dollars. 

§  9.  That  all  powers  of  attorney,  executed  after  the  thirtieth 
day  of  June  next,  in  a  foreign  country,  for  the  transfer  of  any  stock 
of  the  United  States,  or  for  the  receipt  of  interest  thereon,  shall  be 
verified  by  the  certificate  and  seal  of  a  consul,  vice-consul,  commer- 
cial agent,  or  vice-commercial  agent,  if  any  there  be,  at  the  place 
where  the  same  shall  be  executed,  for  which  the  person  giving  the 
certificate  shall  receive  fifty  cents.     [Ajiprovcd,  February  28,  1803.] 


2d  March,  1805. 

CuAP.  \ii-']     An  act  to  amend  the  act,  entitled  "  An  act  for  the  government  and 
regulation  of  seamen  in  the  merchants'  service." 

§  I.  Be  it  enacted,  S^c.  That  all  the  provisions,  regulations, 
and  penalties,  which  are  contained  in  the  eighth  section  of  the  act, 
entitled  "An  act  for  the  government  and  regulation  of  seamen  in 
the  merchants'  service,"  so  far  as  relates  to  a  chest  of  medicines  to 
be  provided  for  vessels  of  one  hundred  and  fifty  tons  burthen,  and 
upwards,  shall  be  extended  to  all  merchant  vessels  of  the  burthen  of 
seventy-five  tons,  or  upwards,  navigated  with  six  persons,  or  more, 
in  the  whole,  and  bound  from  the  United  States  to  any  port  or  ports 
in  the  West  Indies.     [Approved,  March  2,  1805.] 


M  March,  1813. 

Chap.  [18*1.]     An  act  for  the  regulation   of  seamen  on  board  the  public  and  pri- 
vate vcKsels  of  the  United  States. 

<§  1.  lie  it  enacted,  ^-c.  That  from  and  after  the  tcrmiiKition  of 
the  war  in  which  the  United  States  arc  now  cnfrafrcd  with  Great 
Britain,  it  shall  not  be  lawful  to  employ  on  hoaid  any  ol'  ili<:  juiMic 
or  i)rivate  vessels  of  the  United  States  any  person  or  persons  except 
citizens  of  the  United  States,  or  persons  of  color,  natives  of  the 
United  Slates. 


41G  APPENDIX  III. 

*§,  2.  That  from  and  aflor  (he  time  when  this  act  shall  take  elTect, 
it  shall  not  be  lawTtil  to  employ  as  aforesaid  any  naturalized  citizen 
of  the  United  States,  unless  such  citizen  shall  produce  to  the  com- 
mander of  the  ])ul)lic  vessel,  il"  to  he  employed  on  hoard  such  ves- 
sel, or  to  a  col U  (.lor  of  the  customs,  a  certified  copy  of  the  act  by 
which  he  shall  have  been  naturalized,  setting  forth  such  naturaliza- 
tion, and  the  time  thereof 

§  3.  That  in  all  cases  of  private  vessels  of  the  United  States  sail- 
ing from  a  port  in  the  llnited  States  to  a  foreign  port,  the  list  of  the 
crew,  made  as  heretofore  directed  by  law,  shall  be  examined  by  the 
collector  for  the  district  from  which  the  vessel  shall  clear  out,  and, 
if  ajijjroved  of  by  him,  shall  be  certified  accordingly.  And  no  per- 
son shall  be  admitted  or  employed  as  aforesaid,  on  board  of  any  ves- 
sel aforesaid,  unless  his  name  shall  have  been  entered  in  the  list  of 
the  crew,  approved  and  certified  by  the  collector  for  the  district 
from  which  the  vessel  shall  clear  out  as  aforesaid.  And  the  said 
collector,  before  he  delivers  the  list  of  the  crew,  approved  and  cer- 
tified as  aforesaid,  to  the  captain,  master,  or  proper  ofhcer,  of  the 
vessel  to  which  the  same  belongs  shall  cause  the  same  to  be  recorded 
in  a  book,  by  him  for  that  purpose  to  be  provided  ;  and  the  said 
record  shall  be  open  for  the  inspection  of  all  persons,  and  a  certified 
copy  thereof  shall  be  admitted  in  evidence,  in  any  court  in  which 
any  question  may  arise,  under  any  of  the  provisions  of  this  act. 

§  4.  That  the  president  of  the  United  States  be,  and  he  hereby 
is,  authorized,  from  time  to  time,  to  make  such  further  regulations, 
and  to  give  such  directions  to  the  several  commanders  of  public 
vessels,  and  to  the  several  collectors,  as  may  be  proper  and  necessary, 
respecting  the  proofs  of  citizenship,  to  be  exhibited  to  the  command- 
ers or  collectors  aforesaid  :  Provided,  That  nothing  contained  in 
such  regulations  or  directions  shall  be  repugnant  to  any  of  the  pro- 
visions of  this  act. 

§  5.  That,  from  and  after  the  time  when  this  act  shall  take  effect, 
no  seaman  or  other  seafaring  man,  not  beinw  a  citizen  of  the  United 
States,  shall  be  admitted  or  received  as  a  passenger  on  board  of  any 
public  or  private  vessel  of  the  United  States,  in  a  foreign  port,  with- 
out permission,  in  writing,  from  the  proper  ofljcers  of  the  country  of 
which  such  seaman  or  seafaring  man  may  be  subject  or  citizen. 

<S,  6.  That,  from  and  after  the  time  when  this  act  shall  take  effect, 


APPEiNDIX  111.  417 

the  consuls  or  commercial  agents  of  any  nation  at  peace  with  the 
United  States  shall  be  admitted,  (under  such  regulations  as  may  be 
prescribed  by  the  President  of  the  United  States.)  to  state  their  ob- 
jections to  the  proper  commander  or  collector  as  aforesaid,  against 
the  employment  of  any  seaman  or  seafaring  man  on  board  of  any 
public  or  private  vessel  of  the  United  States,  on  account  of  his  be- 
ing a  native  subject  or  citizen  of  such  nation,  and  not  embraced 
within  the  description  of  persons  who  may  be  lawfully  employed, 
according  to  the  provisions  of  this  act ;  and  the  said  consuls  or 
commercial  agents  shall  also  be  admitted,  under  the  said  regulations, 
to  be  present  at  the  time  when  the  proofs  of  citizenship,  of  the  per- 
sons against  whom  such  objections  may  have  been  made,  shall  be 
investigated  by  such  commander  or  collector. 

§  7.  That  if  any  commander  of  a  public  vessel  of  the  United 
States  shall  knowingly  employ,  or  permit  to  be  employed,  or  shall 
admit  or  receive,  or  permit  to  be  admitted  or  received,  on  board  his 
vessel,  any  person  whose  employment  or  admission  is  prohibited  by 
the  provisions  of  this  act,  he  shall,  on  conviction  thereof,  forfeit  and 
pay  the  sum  of  one  thousand  dollars  for  each  person  thus  unlaw- 
fully employed  or  admitted  on  board  such  vessel. 

<§,  8.  That  if  any  person  shall,  contrary  to  the  prohibitions  of  this 
act,  be  employed  or  be  received  on  board  of  any  private  vessel,  the 
master  or  commander,  and  the  owner  or  owners  of  such  vessel, 
knowing  thereof,  shall,  respectively,  forfeit  and  pay  five  hundred  dol- 
lars for  each  person  thus  unlawfully  employed  or  received,  in  any 
one  voyage;  which  sum  or  sums  shall  be  recovered,  although  such 
seaman  or  person  shall  have  been  admitted  and  ciitt'rcti  in  tlio  certi- 
fied list  of  the  crew  aforesaid  by  the  collector  ibr  the  district  to 
which  the  vessel  may  belong;  and  all  the  penalties  and  forfeitures 
arising  under,  or  incurred  by  virtue  of  this  act,  may  be  sued  for, 
prosecuted,  and  recovered,  with  costs  of  suit,  l)y  action  of  debt,  and 
shell!  accrue  and  be,  one  moiety  thereof  to  the  use  of  the  person 
who  shall  sue  for  the  same,  and  the  other  moiety  thereof  to  the  use 
of  the  United  States. 

§  9.  Tliat  nothing  in  this  act  contained  .'-liall  be  construed  to 
prohibit  any  connnanilcr  or  master  of  a  |iiil)lic  or  private  vessel  of 
the  United  States,  whilst  in  a  foreign  port  or  place,  from  receiving 
any  American   seaman    in   conformity  to  law,  or  supplying   any  de- 

53 


418  APPKiNUlX    HI. 

ficicucy  of  seamen  on  board  such  vessel,  by  employing  American 
seamen,  or  subjects  of  such  foreign  country,  the  cmi)loyment  of 
whom  shall  not  be  prohibited  by  the  laws  thereof 

§  10.  That  the  provisions  of  this  act  shall  havenocllect  or  opera- 
tion with  respect  to  the  employment,  as  seamen,  of  the  subjects  or 
citizens  of  any  foreign  nation  which  shall  not,  by  treaty  or  special 
convention  with  the  govoriiiiKMU  of  the  United  Slates,  have  prohib- 
ited, on  board  of  her  public  and  private  vessels,  the  employment  of 
native  citizens  of  the  United  States,  who  have  not  become  a  citizen 
or  subject  of  such  nation. 

§  11.  That  nothing  in  this  act  contained  shall  be  so  construed 
as  to  prevent  any  arrangement  between  the  United  States  and  any 
foreign  nation,  which  may  take  place  under  any  treaty  or  convention, 
made  and  ratified  in  the  manner  prescribed  by  the  constitution  of 
the  United  States. 

§  12.  That  no  person  who  shall  arrive  in  the  United  States,  from 
and  after  the  time  when  this  act  shall  take  effect,  shall  be  admitted 
to  become  a  citizen  of  the  United  States,  who  shall  not,  for  the  con- 
tinued term  of  five  years,  next  preceding  his  admission  as  aforesaid, 
have  resided  within  the  United  States  without  being,  at  any  time 
during  the  said  five  years,  out  of  the  territory  of  the  United  States. 

§  1:3.  That  if  any  person  shall  falsely  make,  forge,  or  counterfeit, 
or  cause,  or  procure  to  be  falsely  made,  forged,  or  counterfeited,  any 
certificate  or  evidence  of  citizenship  referred  to  in  this  act;  or  shall 
pass,  utter,  or  use  as  true,  any  false,  forged,  or  counterfeited  cer- 
tificate of  citizenship,  or  shall  make  sale  or  dispose  of  any  cer- 
tificate of  citizenship  to  any  person  other  than  the  person  for  whom 
it  was  originally  issued,  and  to  whom  it  may  of  right  belong,  every 
such  person  shall  be  deemed  and  adjudged  guilty  of  felony ;  and, 
on  being  thereof  convicted  by  due  course  of  law,  shall  be  sentenced 
to  be  imprisoned  and  kept  to  hard  labor  for  a  period  not  less  than 
three,  or  more  than  five,  years,  or  be  fined  in  a  sum  not  less  than 
five  hundred  dollars,  nor  more  than  one  thousand  dollars,  at  the  dis- 
cretion of  the  court  taking  cognizance  thereof 

§  14.  That  no  suit  shall  be  brought  for  any  forfeiture  or  penalty 
incurred  under  the  provisions  of  this  act,  unless  the  suit  be  cora- 
menced  within  three  years  from  the  time  of  the  forfeiture.  [Ap- 
proved, March  3,  1813.] 


APPENDIX   III.  419 

\Oih  June,  1813. 
Chap.  [2.]     An  act  for  the  government  of  persons  in  certain  fisheries. 

<5,  1.  Be  it  enacted^  «^'c.  That  the  master  or  skipper  of  any  vessel 
of  the  burthen  of  twenty  tons  or  upwards,  qualified  according  to 
law  for  carrvinor  on  the  bank  and  other  cod  fisheries,  bound  from  a 
port  of  the  United  States,  to  be  employed  in  any  such  fishery,  at 
sea,  shall,  before  proceeding  on  such  fishing  voyage,  make  an  agree- 
ment in  writing  or  print  with  every  fisherman  who  may  be  employed 
therein,  (except  only  an  apprentice  or  servant  of  himself  or  owner) 
and,  in  addition  to  such  terms  of  shipment  as  may  be  agreed  on, 
shall,  in  such  agreement,  express  whether  the  same  is  to  continue 
for  one  voyage  or  for  the  fishing  season,  and  shall  also  express  that 
the  fish  or  the  proceeds  of  such  fishing  voyage  or  voyages,  which 
may  appertain  to  the  fishermen,  shall  be  divided  among  them  in  pro- 
portion to  the  quantities  or  number  of  said  fish  which  they  may 
respectively  have  caught;  which  agreement  shall  be  endorsed  or 
countersigned  by  the  owner  of  such  fishing  vessel  or  his  agent. 
And  if  any  fisherman,  having  engaged  himself  for  a  voyage,  or  for 
the  fishing  season,  in  any  fishing  vessel,  and  signed  an  agreement 
therefor,  as  aforesaid,  shall  thereafter,  and  while  such  agreement 
remains  in  force  and  to  be  performed,  desert  or  absent  himself  from 
such  vessel  without  leave  of  the  master  or  skipper  thereof,  or  of  the 
owner  or  his  agent,  such  deserter  shall  be  liable  to  the  same  penal- 
lies  as  deserting  seamen  or  mariners  are  subject  to  in  the  merchant 
service,  and  may,  in  the  like  manner,  and  upon  the  like  complaint 
and  proof,  be  ripprehended  and  detained  ;  and  all  costs  of  process 
and  commitment,  if  paid  by  the  master  or  owner,  shall  be  deducted 
out  of  the  share  of  fish,  or  proceeds  of  any  fishing  voyage,  to  which 
such  deserter  had  or  shall  become  entitled.  And  any  fisherman, 
having  engaged  himself  as  aforesaid,  who  shall,  during  such  fishing 
voyage,  refuse  or  neglect  his  proper  duty  on  board  the  fishing  vessel, 
bein'r  thereto  ordered  or  reciuircd  by  the  master  or  skipper  thereof, 
or  shall  otherwise  resist  his  just  commands,  to  the  hindrance  or  detri- 
ment of  such  voyage,  besides  being  answerable  for  all  damages  aris- 
ing thereby,  shall  forfeit,  to  the  use  of  the  owner  of  sucli  vessel, 
his  share  of  any  public  allowance  which  may  be  paid  upon  such 
voyage. 


420  APPEixnix  III. 

§  2.  'J'liat  where  an  agreement  or  contract  isliall  be  made  and 
signed,  for  a  fishing  voyage,  or  for  the  fishing  season,  and  any  fish, 
uliich  may  have  been  caught  on  board  sucli  vessel  during  the  same, 
shall  be  delivered  to  the  owner  or  to  bis  agi-iit  for  cure,  and  shall 
be  sold  by  said  owner  or  agent,  sucli  vessel  shall,  for  the  term  of 
six  months  after  such  sale,  be  liable  and  answerable  for  the  skipper's 
and  every  other  fisherman's  share  of  such  fish,  and  may  be  proceeded 
against  in  the  same  form,  and  to  the  same  cflect,  as  any  other  vessel 
is  by  law  liable  and  may  be  proceeded  against  for  the  wages  of  sea- 
men or  mariners  in  the  merchant  service.  And  upon  such  process 
for  tiio  value  of  a  share  or  shares  of  the  proceeds  of  fish  delivered 
and  sold  as  aforesaid,  it  shall  be  incumbent  on  the  owner  or  his 
a<Tent  to  produce  a  just  account  of  the  sales  and  division  of  such 
fish,  according  to  such  agreement  or  contract ;  otherwise  the  said 
vessel  shall  be  answerable,  upon  such  process,  for  what  may  be  the 
hio-hest  value  of  the  share  or  shares  demanded.  But  in  all  cases 
the  owner  of  such  vessel  or  his  agent,  appearing  to  answer  to  such 
process,  may  offer  thereupon  his  account  of  general  supplies  made  for 
such  fishing  voyage,  and  of  other  supplies  therefor  made,  to  either 
of  the  demandants,  and  shall  be  allowed  to  produce  evidence  thereof 
in  answer  to  their  demands,  respectively ;  and  judgment  shall  be 
rendered  upon  such  process  for  the  respective  balances  which,  upon 
such  an  inquiry,  shall  appear  :  Provided  nhvai/s,  That  when  process 
shall  be  issued  against  any  vessel  liable  as  aforesaid,  if  the  owner 
thereof,  or  his  agent,  will  give  bond  to  each  fisherman  in  whose 
favor  such  process  shall  be  instituted,  with  sufficient  security,  to  the 
satisfaction  of  two  justices  of  the  peace,  one  of  whom  shall  be 
named  by  such  owner  or  agent,  and  the  otlier  by  the  fisherman  or  fish- 
ermen pursuing  such  process,  or  if  either  party  shall  refuse,  then  the 
justice  first  appointed  shall  name  his  associate,  with  condition  to 
answer  and  pay  whatever  sum  shall  be  recovered  by  him  or  them 
on  such  process,  there  shall  be  an  immediate  discharge  of  such 
vessel :  Provided,  That  nothing  herein  contained  shall  prevent  any 
fisherman  from  having  his  action  at  common  law  for  his  share  or 
shares  of  fish,  or  tlw  proceeds  thereof,  as  aforesaid.  [Approved, 
June  19,  1813.] 


APPENDIX  IIT.  421 

2d  March,  1819. 
Chap.  170.  An  act  regulating  passenger  ships  and  vessels. 

§  1.  Be  it  enacted,  t^'c  That,  if  the  master  or  other  person  on 
board  of  any  ship  or  vessel,  owned  in  the  whole  or  in  part  by  a  citi- 
zen or  citizens  of  the  United  States,  or  the  territories  thereof,  or  by 
a  subject  or  subjects,  citizen  or  citizens,  of  any  foreign  country, 
shall,  after  the  first  day  of  January  next,  take  on  board  of  such  ship 
or  vessel,  at  any  foreign  port  or  place,  or  shall  bring  or  convey  into 
the  United  States,  or  the  territories  thereof,  from  any  foreign  port  or 
place  ;  or  shall  carry,  convey,  or  transport,  from  the  United  [States,] 
or  the  territories  thereof,  to  any  foreign  port  or  place  ;  a  greater 
number  of  passengers  than  two  for  every  five  tons  of  such  ship  or 
vessel,  according  to  custom-house  measurement,  every  such  master, 
or  other  person  so  offending,  and  the  owner  or  owners  of  such  ship 
or  vessel,  shall  severally  forfeit  and  pay  to  the  United  States,  the  sum 
of  one  hundred  and  fifty  dollars,  for  each  and  every  passenger  so 
taken  on  board  of  such  ship  or  vessel,  over  and  above  the  aforesaid 
number  of  two  to  every  five  tons  of  such  ship  or  vessel ;  to  be  re- 
covered by  suit,  in  any  circuit  or  district  court  of  the  United  States, 
where  the  said  vessel  may  arrive,  or  where  the  owner  or  owners 
aforesaid  may  reside  :  Provided,  nevertheless,  that  nothing  in  this 
act  shall  be  taken  to  apply  to  the  complement  of  men  usually  and 
ordinarily  employed  in  navigating  such  ship  or  vessel. 

§  2.  That  if  the  number  of  passengers  so  taken  on  board  of  any 
ship  or  vessel  as  afi>resaid,  or  conveyed  or  brought  into  the  United 
States,  or  transported  tlierefrom  as  aforesaid,  shall  exceed  the  said 
proportion  of  two  to  every  five  tons  of  such  ship  or  vessel,  by  the 
number  of  twenty  passengers,  in  the  whole,  every  such  ship  or  ves- 
sel shall  be  deemed  and  taken  to  be  forfeited  to  the  United  Stales, 
and  shall  be  prosecuted  and  distributed  in  the  same  manner  in  which 
the  forfeitures  and  penalties  are  recovered  and  distributed  under  the 
provisions  of  the  act,  entitled  "  An  act  to  regulate  the  collection  of 
duties  on  in)[)orts  and  tonnage." 

^  3.  That  every  ship  or  vessel  bound  on  a  voyage  from  the  United 
States  to  any  port  on  the  continent  of  Europe,  at  the  lime  ol"  leaving 
the  last  port  whence  such  .ship  or  vessel  shall  sail,  shall  have  on 
board,  well   secured  uiidci  dccli,  at   least  sixty  gallon.s  of  water,  one 


422  APPRNDIX    HI. 

liiiiulrcd  pounds  of  sailed  provisions,  one  gallon  of  vinegar,  and  one 
Inindrod  pounds  of  wholesome  ship  bread,  for  each  and  every  pas- 
senger on  hoard  suoii  sliip  or  vessel,  over  and  above  such  other  |iro- 
visions,  stores,  and  live  stock,  as  may  be  put  on  hoard  by  such  mas- 
ter or  passenger  for  their  use,  or  that  of  the  crew  of  such  ship  or 
vessel;  and  in  like  proportion  for  a  shorter  or  longer  voyage  ;  and 
if  tiie  passengers,  on  board  of  such  siiip  or  vessel  in  which  the  pro- 
portion of  provisions  herein  directed  shall  not  have  been  provided, 
shall  at  any  time  be  put  on  short  allowance,  in  water,  flesh,  vinegar, 
or  bread,  during  any  voyage  aforesaid,  the  master  and  owner  of  such 
ship  or  vessel  shall  severally  pay,  to  each  and  every  passenger  who 
shall  have  been  put  on  short  allowance  as  aforesaid,  the  sum  of  three 
dollars  for  each  and  every  day  they  may  have  been  on  such  short  al- 
lowance ;  to  be  recovered  in  the  same  manner  as  seamen's  wages 
are  or  may  be  recovered. 

§  4.  That  the  captain  or  master  of  any  ship  or  vessel  arriving  in 
the  United  States,  or  any  of  the  territories  thereof,  from  any  foreign 
place  whatever,  at  the  same  time  that  he  delivers  a  manifest  of  the 
cargo,  and,  if  there  be  no  cargo,  then  at  the  time  of  making  report 
or  entry  of  the  sliip  or  vessel,  pursuant  lo  the  existing  laws  of  the 
United  States,  shall  also  deliver  and  report,  to  the  collector  of  the 
district  in  wliich  such  ship  or  vessel  shall  arrive,  a  list  or  manifest  of 
all  the  passengers  taken  on  board  of  the  said  ship  or  vessel  at  any 
foreign  port  or  place  ;  in  which  list  or  manifest  it  shall  be  the  duty 
of  the  said  master  to  designate,  particularly,  the  age,  sex,  and  occu- 
pation, of  the  said  passengers,  respectively,  the  country  to  which 
they  severally  belong,  and  that  of  which  it  is  their  intention  to  be- 
come inhabitants ;  and  shall  further  set  forth  whether  any,  and  what 
number,  have  died  on  the  voyage  ;  which  report  and  manifest  shall 
be  sworn  to  by  the  said  master,  in  the  same  manner  as  is  directed 
by  the  existing  laws  of  the  United  States  in  relation  to  the  manifest  of 
the  cargo,  and  that  the  refusal  or  neglect  of  the  master  aforesaid,  to 
comply  with  the  provisions  of  this  section,  shall  incur  the  same 
penalties,  disabilities,  and  forfeitures,  as  are  at  present  provided  for 
a  refusal  or  neglect  to  report  and  deliver  a  manifest  of  the  cargo 
aforesaid. 

§  5.  That  each  and  every  collector  of  the  customs,  to  whom  such 
manifest   or  list  of  passengers  as  aforesaid  shall  be  delivered,  shall. 


APPEA'DIX  m.  423 

quarter  yearly,  return  copies  thereof  to  the  secretary  of  state  of  the 
United  States,  by  whom  statements  of  the  same  shall  be  bid  before 
congress  at  each  and  every  session.     [Ajjproved,  March  2,  1819.] 


2fZ  Marcli  1S29. 

Chap.  [202.]     An  act  to  provide  for  the  apprehensien  and  delivery  of  deserters 
from  certain  foreign  vessels  in  the  ports  of  the  United  States. 

§  1.  Be  it  enacted,  Sfc.  That  on  application  of  a  consul  or  vice- 
consul  of  any  foreign  government,  having  a  treaty  with  the  United 
States,  stipulating  for  the  restoration  of  seamen  deserting,  made  in 
writing,  stating  that  the  person  therein  named  has  deserted  from  a 
vessel  of  any  such  government  while  in  any  port  of  the  United  Stales, 
and  on  proof  by  the  e.xhibition  of  the  register  of  the  vessel,  ship's 
roll,  or  other  otKcial  document,  that  the  person  named  belonged,  at 
the  time  of  desertion,  to  the  crew  of  said  vessel,  it  shall  be  the  duty 
of  any  court,  judge,  justice,  or  other  magistrate,  having  competent 
power,  to  issue  warrants  to  cause  the  said  person  to  be  arrested  for 
examination  ;  and  if,  on  examination,  the  facts  stated  are  found  to 
be  true,  the  person  arrested,  not  being  a  citizen  of  the  United  States, 
shall  be  delivered  up  to  the  said  consul  or  vice-consul,  to  be  sent 
back  to  the  dominions  of  any  such  government,  or,  on  the  request, 
and  at  the  expense,  of  the  said  consul  or  vice-consul,  shall  be  de- 
tained until  the  consul  or  vice-consul  finds  an  opportunity  to  send 
him  back  to  the  dominions  of  any  such  government  :  Provided 
nevertheless,  That  no  person  shall  be  detained  more  than  two  months 
after  his  arrest ;  but  at  the  end  of  that  time  shall  be  at  liberty, 
and  shall  not  be  again  molested  for  the  same  cause  :  And  provided 
further ^Thai  if  any  such  deserter  shall  be  found  to  have  committed 
any  crime  or  offence,  liis  surrender  may  be  delayed  until  the  tribunal 
before  which  the  case  shall  be  depending,  or  may  be  cognizable, 
shall  have  pronounced  its  sentence,  and  such  sentence  shall  have 
been  carried  into  effect.     [Aj/provcd,  2  March,  1629.] 


-1.24  M'l'lMNUlX    111. 

-2()th  July,  1840. 

Chat.  [2:5.]     An  net  in  nddition  to  tlic  several  acts  rcgnlating  llie  sliiptncnt  and 
tliseliarirc  of  seamen,  and  the  duties  of  consuls. 

[§  1.]      He  it  tmutvd,  Sf'c,  As  follows; 

First.  The  duplicate  list  of  the  crew  of  any  vessel  bound  on  a 
foreign  voyage,  made  out  pursuant  to  the  act  of  February  twenty- 
eighth,  eighteen  hundred  and  three,  shall  be  a  fair  copy  in  one  uni- 
form handwriting,  without  erasure  or  interlineation. 

Second.  It  shall  be  the  duty  of  the  owners  of  every  such  vessel 
to  obtain  from  the  collector  of  the  customs  of  the  district  from  which 
the  clearance  is  made,  a  true  and  certified  copy  of  the  shipping  arti- 
cles, containing  the  names  of  the  crew,  which  shall  be  written  in  a 
uniform  hand,  without  erasures  or  interlineations. 

Third.  These  documents  which  shall  be  deemed  to  contain  all 
the  conditions  of  contract  with  the  crew  as  to  their  service,  pay, 
voyage,  and  all  other  things,  shall  be  produced  by  the  master,  and 
laid  before  any  consul,  or  other  commercial  agent  of  the  United 
States,  whenever  he  may  dwem  their  contents  necessary  to  enable 
him  to  discharge  the  duties  imposed  upon  him  by  law  toward  any 
mariner  applying  to  him  for  his  aid  or  assistance. 

Fourth.  All  interlineations,  erasures, or  writing  in  a  hand  different 
from  that  in  which  such  duplicates  were  originally  made,  shall  be 
deemed  fraudulent  alterations,  working  no  change  in  such  papers, 
unless  satisfactorily  explained  in  a  manner  consistent  with  innocent 
purposes  and  the  provisions  of  law  which  guard  the  rights  of  mari- 
ners. 

Fifth.  Any  consul  of  the  United  States,  and  in  case  there  is  none 
resident  at  a  foreign  port,  or  he  is  unable  to  discharge  his  duties, 
then  any  commercial  agent  of  the  United  States  authorized  to  per- 
form such  duties,  may,  upon  the  application  of  both  the  master  and 
any  mariner  of  the  vessel  under  his  command,  discharge  such  mari- 
ner, if  he  thinks  it  expedient,  without  requiring  the  payment  of  three 
months'  wages,  under  the  provisions  of  the  act  of  the  twenty-eighth 
of  February,  eighteen  hundred  and  three,  or  any  other  sum  of  money. 

Sixth.  Any  consul,  or  other  commercial  agent,  may  also,  on  such 
joint  application,  discharge  any  mariner  on  such  terms  as  will,  in  his 
judgnjent,  save  the  United  States  from  the  liability  to  support  such 


APPENDIX  III.  425 

mariner,  if  the  master  gives  his  voluntary  assent  to  such  terms,  and 
conforms  thereto. 

Seventh.  When  a  mariner  is  so  discharged,  the  officer  discharging 
him  shall  make  an  otTicial  entry  thereof  upon  the  list  of  the  crew 
and  the  shipping  articles. 

Eighth.  Whenever  any  master  shall  ship  a  mariner  in  a  foreign 
port,  he  shall  forthwith  take  the  list  of  his  crew  and  the  duplicate 
of  the  shipping  articles  to  the  consul,  or  person  who  discharges  the 
duties  of  the  office  at  that  port,  who  shall  n)ake  the  proper  entries 
thereon,  setting  forth  the  contract,  and  describing  the  person  of  the 
mariner;  and  thereupon  the  bond  originally  given  for  the  return  of 
the  men  shall  embrace  each  person  so  shipped. 

Ninth.  When  any  mariner  shall  complain  that  the  voyage  is  con- 
tinued contrary  to  his  agreement,  or  that  he  has  fulfilled  his  contract, 
the  consul,  or  other  commercial  agent  performing  like  duties,  may 
examine  into  the  same  by  an  inspection  of  the  articles  of  agreement  ; 
and  if  on  the  face  of  them  he  finds  the  complaint  to  be  well  founded, 
he  snail  discharge  the  mariner,  if  he  desires  it,  and  require  of  the 
master  an  advance,  beyond  the  lawful  claims  of  such  mariner,  of  three 
months'  wages,  as  provided  in  the  act  of  February  twenty-eighth, 
eighteen  hundred  and  three;  and  in  case  the  lawful  claims  of  such  mari- 
ner are  paid  upon  his  discharge,  the  arrears  shall  from  that  time 
bear  an  interest  of  twenty  per  centum  :  Provided^  however,  if  the 
consul,  or  other  commercial  agent,  shall  be  satisfied  the  contract  has 
expired,  or  the  voyage  been  protracted  by  circumstances  beyond  the 
control  of  the  master,  and  without  any  design  on  his  part  to  violate 
the  articles  of  shipment,  then  he  may,  if  he  deems  it  just,  discharge 
the  mariner  with  exacting  the  three  months'  pay. 

Tenth.  All  shipments  of  seamen,  made  contrary  to  the  provisions 
of  this  and  other  acts  of  congress,  shall  be  void  ;  and  any  sea- 
men so  shipped  may  leave  the  service  at  any  time,  and  demand  the 
highest  rate  of  wages  paid  to  any  seaman  shipped  for  the  voyage,  or 
the  sum  agreed  to  be  given  hitn  at  his  shipment. 

Eleventh.  It  shall  be  the  duty  of  consuls  and  commercial  agents 
to  reclaim  deserters  and  discountenance  insubordination  by  every 
means  within  their  pow(!r;  and  where  the  local  authorities  can  be 
usefully  crn[)!oyt'd  for  that  purpose,  to  Imd  their  aid  and  use  their 
exertions  to  that  end  in  the  most  ufi'ectual  manner. 
64 


426  AITKNOIX   111. 

Twelfth.  If  the  first  oiTiccr,  or  any  ofTiccr,  and  a  majority  of  the 
crew  of  any  vessel  shall  make  complaint  in  writing  that  she  is  in  an 
unsuitable  condition  to  go  to  sea,  because  she  is  leaky,  or  insuffi- 
ciently sui)plin(l  with  sails,  rigging,  anchors,  or  any  other  equipment, 
or  that  the  crew  is  insuflicient  to  man  her,  or  that  her  provisions, 
stores,  and  supplies  are  not,  or  have  not  been,  during  the  voyage, 
sufficient  and  wholesome,  thereupon,  in  any  of  these  or  like  cases, 
the  consul  or  commercial  agent  who  may  discharge  any  duties  of  a 
consul  shall  appoint  two  disinterested,  competent,  practical  men,  ac- 
quainted with  maritime  affairs,  to  examine  into  the  causes  of  com- 
plaint, who  shall  in  their  report  state  what  defects  and  deficiencies, 
if  any,  they  find  to  be  well  founded,  as  well  as  what,  in  their  judg- 
ment, ought  to  be  done  to  put  the  vessel  in  order  for  the  continuance 
of  her  voyage. 

Thirteenth.  The  inspectors  so  appointed  shall  have  full  power  to 
examine  the  vessel  and  whatever  is  aboard  of  her,  as  far  as  is  perti- 
nent to  their  inquiry,  and  also  to  hear  and  receive  any  other  proofs 
which  the  ends  of  justice  may  require,  and  if,  upon  a  view  of  the 
whole  proceedings,  the  consul,  or  other  commercial  agent,  shall  be 
satisfied  therewith,  he  may  approve  the  whole  or  any  part  of  the  re- 
port, and  shall  certify  such  approval,  and  if  he  dissents,  shall  also 
certify  his  reasons  for  so  dissenting. 

Fourteenth.  The  inspectors  in  their  report  shall  also  state  whether, 
in  their  opinion,  the  vessel  was  sent  to  sea  unsuitably  provided  in 
any  important  or  essential  particular,  by  neglect  or  design,  or  through 
mistake  or  accident,  and  in  case  it  was  by  neglect  or  design,  and  the 
consul  or  other  commercial  agent  approves  of  such  finding,  he  shall 
discharge  such  of  the  crew  as  require  it,  each  of  whom  shall  be  en- 
titled to  three  months'  pay  in  addition  to  his  wages  to  the  time  of 
discharge  ;  but,  if  in  the  opinion  of  the  inspectors  the  defects  or 
deficiencies  found  to  exist  have  been  the  result  of  mistake  or  acci- 
dent, and  could  not,  in  the  exercise  of  ordinary  care,  have  been 
known  and  provided  against  before  the  sailing  of  the  vessel,  and  the 
master  shall,  in  a  reasonable  time,  remove  or  remedy  the  causes  of 
complaint,  then  the  crew  shall  remain  and  discharge  their  duty; 
otherwise  they  shall,  upon  their  request,  be  discharged,  and  receive 
each  one  month's  wages  in  addition  to  the  pay  up  to  the  time  of 
discharse. 


APPENDIX  III.  427 

Fifteenth.  The  master  shall  pay  all  such  reasonable  charges  in  the 
premises  as  shall  be  officially  certified  to  him  under  the  hand  of  the 
consul  or  other  commercial  agent,  but  in  case  the  inspectors  report 
that  the  complaint  is  without  any  good  and  sufficient  cause,  ilie  mas- 
ter may  retain  from  the  wages  of  the  complainants,  in  proportion  to 
the  pay  of  each,  the  amount  of  such  charges,  with  such  reasonable 
damages  for  detention  on  that  account  as  the  consul  or  other  com- 
mercial agent  directing  the  inquiry  may  officially  certify. 

Sixteenth.  The  crew  of  any  vessel  shall  have  the  fullest  liberty  to 
lay  their  complaints  before  the  consul  or  commercial  agent  in  any 
foreign  port,  and  shall  in  no  respect  be  restrained  or  hindered  therein 
by  the  master  or  any  officer,  unless  some  sufficient  and  valid  objec- 
tion e.xist  against  their  landing;  in  which  case,  if  any  mariner  de- 
sire to  see  the  consul  or  commercial  agent,  it  shall  be  the  duty  of 
the  master  to  acquaint  him  with  it  forthwith ;  stating  the  reason  why 
the  mariner  is  not  permitted  to  land,  and  that  he  is  desired  to  come 
on  board;  whereupon  it  shall  be  the  duty  of  such  consul  or  com- 
mercial agent  to  repair  on  board  and  intjuire  into  the  causes  of  the 
complaint,  and  to  proceed  thereon  as  this  act  directs. 

Seventeenth.  In  all  cases  where  deserters  are  apprehended,  the 
consul  or  commercial  agent  shall  inquire  into  the  facts;  and,  if  satis- 
fied that  the  desertion  was  caused  by  unusual  or  cruel  treatment,  the 
mariner  shall  be  discharged,  and  receive,  in  addition  to  his  wages  to 
the  time  of  the  discharge,  three  months'  pay  ;  and  the  officer  dis- 
charging him  shall  enter  upon  the  crew-list  and  shipping  articles  the 
cause  of  discharge,  and  the  particulars  in  which  the  cruelty  or 
unusual  treatment  consisted,  and  subscribe  his  name  thereto  officially. 

Eicrhteenlli.  If  any  consul  or  commercial  agent  shall  neglect  or 
omit  to  perform,  seasonably,  the  duties  hereby  imposed  upon  him,  or 
shall  be  guilty  of  any  malversation  or  abuse  of  power,  he  shall  be 
liable  to  any  injured  person  for  all  damage  occasioned  thereby  ;  and 
for  all  malversation  and  corrupt  conduct  in  oflice,  he  shall  be  liable 
lo  indictment,  and,  on  conviction  by  any  court  of  competent  juris- 
diction, shall  be  fined  not  less  than  one  nor  more  than  ten  thousand 
dollars,  and  be  imprisoned  not  less  than  one  nor  more  the  five  years. 

Nineteenth.  If  any  master  of  a  vessel  shall  proceed  on  a  fortign 
voyage  without  the  documents  herein  required,  or  refuse  to  produce 
them  when  required,  or  to  perform  the  duties  imposed  by  this  act,  or 


428  APl'IiNDlX   III. 

sliall  violate  tlio  ])rovisioiis  thereof,  lie  shall  he  liahle  to  each  and 
every  individual  injured  thereby,  in  damages,  and  shall,  in  addition 
thereto,  he  liable  to  |)ay  a  fine  of  one  hundred  dollars  for  each  and 
every  offence,  to  be  recovered  by  any  person  suing  therefor  in  any 
court  of  the  United  States  in  the  district  where  such  delinquent  may 
reside  or  be  found. 

Twentieth.  It  shall  be  the  duty  of  the  boarding  officer  to  report 
all  violations  of  this  act  to  the  collector  of  the  port  where  any  vessel 
may  arrive,  and  the  collector  shall  report  the  same  to  the  secretary 
of  the  treasury  and  to  the  attorney  of  the  United  States  in  his  dis- 
trict. 

Twenty-first.  This  act  shall  be  in  force  from  and  after  the  first 
day  of  October  next ;  and  shall  not  apply  to  vessels  which  shall  have 
sailed  from  ports  of  the  United  States  before  that  time.  [Aj^iproved, 
July  '■20th  1840.] 


4fh  April,  1840. 

Chap.  [G.]  An  act  to  cancel  the  bonds  given  to  secure  duties  upon  vessels  and 
their  cargoes,  employed  in  the  whale  fishery,  and  to  make  registers  lawful 
papers  for  such  vessels. 

^  I.  Be  it  enacted,  (S^-c.  That  all  vessels  which  have  cleared,  or 
hereafter  may  clear,  with  registers  for  the  purpose  of  engaging  in 
the  whale  fishery,  shall  be  deemed  to  have  lawful  and  sufficient  pa- 
pers for  such  voyages,  securing  the  privileges  and  rights  of  registered 
vessels,  and  the  privileges  and  exemptions  of  vessels  enrolled  and 
licensed  for  the  fisheries ;  and  all  vessels  which  have  been  enrolled 
and  licensed  for  like  voyages  shall  have  the  same  privileges  and 
measure  of  protection  as  if  they  had  sailed  with  registers  if  such 
voyages  are  completed  or  until  they  are  completed. 

^  2.  That  all  the  provisions  of  the  first  section  of  the  act  entitled 
"  An  act  supplementary  to  the  act  concerning  consuls  and  vice-con- 
suls, and  for  the  further  protection  of  American  seamen,"  passed  on 
the  twenty-eighth  day  of  February,  Anno  Domini  eighteen  hundred 
and  three,  shall  hereafter  apply  and  be  in  full  force  as  to  vessels  en- 
gaged in  the  whale  fishery  in  the  same  manner  and  to  the  same 
extent  as  the  same  is  now  in  force  and  applies  to  vessels  bound  on 
a  foreign  voyage. 


APPENDIX  IV.  429 

§  3.  That  all  forfeitures,  fees,  duties  and  charges  of  every  descrip- 
tion required  of  the  crews  of  such  vessels,  or  assessed  upon  the  ves- 
sels or  cargoes,  being  the  produce  of  such  fishery,  because  of  a  sup- 
posed insufficiency  of  a  register  to  exempt  them  from  such  claims, 
are  hereby  remitted  ;  and  all  bonds  given  for  such  cause  are  hereby 
cancelled,  and  the  secretary  of  the  treasury  is  hereby  required  to 
refund  all  such  moneys  as  have  been,  or  which  may  be,  paid  into 
the  treasury,  to  the  rightful  claimants,  out  of  the  revenues  in  his 
hands.     [Approved,  April  4,  1S40.] 


IV. 
MISCELLANEOUS. 


SUPPLEMENTARY  NOTE   TO  PAGE   290 :    UPON  THE   QUESTION  OF    A    FURTHER 
REWARD  IN  CASES  OF  SHIPWRECK,  IN  THE  NATURE  OF  SALVAGE. 

Since  the  text  upon  this  subject  was  written,  there  has  been  a 
further  hearing  in  the  United  States  District  Court  for  Maine,  of 
the  case  of  The  Dawn,  reported  in  Ware's  R.  p.  425,  for  the 
settlement  of  the  question,  to  what  a  mariner  is  entitled  upon  con- 
demnation and  sale  of  the  ship  abroad,  rendered  necessary  by  perils 
of  the  sea ;  and  since  the  sheets  of  this  work  passed  through  the 
press,  I  have  been  favored  by  the  learned  Judge  with  a  copy  of  his 
decision,  the  substance  of  which  is  as  follows  : 

The  libellant  shipped  for  a  voyage  from  Boston  to  Turk's  Island. 
The  ship  soon  after  leaving  port,  was  so  much  damaged  by  the  for- 
tune of  the  seas,  that  the  master,  for  the  safety  of  the  lives  of  the 
crew,  put  into  Bermuda,  where  a  survey  was  called,  and  she  was  con- 
demned and  sold  as  a  wreck  and  her  crew  discharged.  VVa"es  were 
paid  to  the  libellant  until  ho  arrived  at  Bermuda.  By  his  libel  he 
claimed  either  the  two  niouihs'  wages  allowed  to  seamen  on  the 
sale  of  a  vessel  in  a  foreign  port  and  the  discharge  of  the  crew,  by 
the  Act  of  Congress,  of  February,  iSdlJ,  chap.  03;  or  a  sum  in  ad- 
dition to  his  wages  to  pay  his  expenses  home. 

llided,  that  the  Act  of  Congress  applies  only  to  the  case  of  a  vol- 
untary sale  of  a  vessel,  and  not  to  a  sale  rendered  necessary  by  mis- 


230  APrr.isuix  iv. 

fortuni^,  an  1  iliat  tlio  lihoUant  was  not  entitled  to  the  statute  allow- 
ance, but  was  ciitillod  to  a  sum  in  addition  to  liis  wages,  to  defray 
llie  expenses  of  his  return  home,  to  l)c  paid  lioni  the  proceeds  of  the 
sale  of  the  vessel. 

In  case  of  shipwreck,  the  seamen  are  by  the  maritime  law  bound 
to  remain  by  the  vessel,  and  exert  themselves  to  save  all  that  is  pos- 
sible of  the  ship  and  cargo. 

When  they  do  this  they  arc  entitled  to  their  full  wages,  without 
deduction,  against  the  materials  which  they  save  of  the  ship,  if 
enough  is  saved  to  pay  them. 

And  they  are  entitled  to  a  further  reward  in  the  nature  of  salvage 
against  the  whole  mass  of  property  saved. 

Their  claim  is  not  as  general  or  volunteer  salvors,  nor  are  they 
entitled  to  an  equally  large  salvage;  but  they  are  entitled  to  a  rea- 
sonable allowance,  pro  opera  ct  laborc,  according  to  the  circum- 
stances of  the  case  and  the  merits  of  their  services. 

When  the  disaster  happens  in  foreign  parts  this  ought  not  to  be 
less  than  the  e.xpenses  of  their  return  home. 


INDEX. 


AHDUCTION, 

tortious,  remedy  for  .  .  .  .  .  340 

ABSENCE, 

of  seamen      .  .  .  .  .  .30  —  32 

is  a  general  maritime  offence      .  .  .      137,  et  seq. 

statute  provisions  against       .  .         31 — 32,140  — 142 

wliether  seamen  bound  to  wait  unlivery  of  cargo,   137 —  140 

civil  compensation  for 

statute  penalties  against 
ABUSE, 

of  seamen  .... 

statute  respecting        .... 
ACT  OF  GOD,  .... 

of  the  jtuMic  enemy  .... 

ADMIRALTY  JURISDICTIOX, 

liow  it  deals  with  seamen 

not  affected  by  statute  of  limitations 

orifrin  of        . 

conflicts  and  controversies  respecting,     . 

extension  of,  in  England, 

grant  of,  in  the  constitution  of  the  United  States 

includes  tnariner's  wages  upon  principle 

over  m«rin«'r's  contracts  aiicitMitly 

in  the  Province  of  Massncliusetts  Bay       34^, 3J!',  M7I,  cl  seq. 

f)prjn  to  all  |)i;rsonH  rendering  maritime  service    350,  352,  353 

muster's  standing  in /jerso/iUHJ  .  .  351 

test  of  the  right  to  sue  in  ....     352 


137,  138,  139 

140,  141 

20—27,85  —  86 

.      85 

223 

.    223 

.       37, 43 

.     208  —  209 

3J2 

343,  344 

344 

iites             .    345 

345,  d  seq. 

.     .3  jr,  _  347 

432  ixDF.x. 

ADMIRALTY  JURISDICTION,  (Contimtecl.) 

not  all'octi'd  liy  a  ssciil,  in  America     .  .  .   .'35:},  354 

not  uxcluiltMl  liy  tliu  Ibriii  of  coiii|)eiKsati<)ii         .  .     353 

I)iit  tilt!  cuiisiiliratioii  iimst  l>o  in  jxrunia  numcrata  354 

may  cnti'itain  suit  lor  hrcacli  of  coiiiract  .  355-6 

in  suits  between  foreigt)cis   .  .  .  35'.i — 359 

pnssengci's  may  sue  in,  wlien       ....     3(!0 

in  personam   .....  300,  et  seq. 

over  contracts  ....     3(il 

over  torts  .  .  .       3Gl,3Gv?,  371 

in  rem       ......         3(!3, 364 

whether  it  can  compel  specific  performance        IGo,  note,  375 

ADVANCE  WACES, 

defined  .......  274 

not  returned,  when  voyage,  freight  and  wages  lost         .    274 

AGENT, 

when  may  take  a  bottomry  bond  .  .  178  —  179 

APPORTIONMENT  OF  WAGES, 

in  contracts  for  tiio  voyage  or  run     .  .  .   63  —  69 

in  contracts  for  monthly  wages  .  .  69  —  71 

in  contracts  for  a  share  of  freight  or  profits  .   71  —  76 

APPRENTICES, 

may  not  ordinarily  be  sent  to  sea    .  .  .14 

ARTICLES, 

when  required     .....       37,  et  seq. 
on  what  voyages,      .....  39 

must  describe  "  voyage "  ....      39 

construction  of  .  .  .  .  .39  —  57 

conclusiveness  of  ....         43 — 49 

clauses  restricting  the  right  to  wages  .  .      45,54 

when  wages  omitted  by  mistake  .  .        47,  note, 

are  evidence  of  the  master's  contract  .  .  47 

certified  copy  must  be  carried  out,  .  .  .48 

erasures  in,  interlineations,  iVc,  to  be  deemed  fraudulent     49 
when  must  be  produced  to  consul  .  .  .49 

sjjecial  clauses  .  .  .  .  .53  —  58 

cannot  restrain  general  right  to  wages    .  .         55  —  58 

in  cod  fishery,  must  be  endorsed  by  owner,  .  58 

not  conclusive  as  to  who  is  owner  .  .    59,  328,  329 

in  whale  fishery,  noi  required  by  any  statute  .  60 

are  evidence  of  master's  wages  ....     251 
form  of,  in  Boston      .....  383 


i^DEx.  433 

ARTICLES,  {Continued.) 

form  of  in  Philadelphia  ....     386 

in  New  England  cod  fisheries,  «Scc.  .           389 

in  whale  fisheries,  of  New  Bedford       .  .     391 

of  Nantucket     .  .           395 

ASSAULT  AND  BATTERY, 

release  for,  f/Smnionly  given,  not  conliisive  .  .             55 

when  committed  by  master  or  other  officer        .  .      85 

remedy  for     .....  337  —  340 
ASSUxMPSIT, 

may  bo  maintained  for  pro  rata  wages,  &c.  .           366 
AUTHORITY  OF  THE  MASTER,     (.^ee  Master.) 
AVERAGE.     {See  General  Average.) 

IJ. 

BARRATRY, 

defined 118  —  119 

BILLS  OF  EXCHANGE, 

collateral  to  a  bottomry  bond       ....     178 

drawn  on  owner  to  pay  for  supplies              .  .           173 

taken  by  a  mariner,  discharges  his  lien                .  .     319 

semble,  it  should  be  negotiable  319 

BILLS  OF  LADING, 

master's  presumed  authority  to  sign              .  .   169,  171 

what  is     .             .             .            .            .            .  •    217 

saving  clause  of,  in  America             .            .  .  217,  218 

in  England        .             .             .  218,  no/e. 

construction  of,  .  .  .      212-213,218-220 

BOTTOMRY  BOND,  on. S7n>            ....  175,etseq. 

on  freight      ......  249 

{See  Master.) 

BURNING  OF  VESSEL, 

punishment  for         ....  119  — 120 


CABIN  BOY, 

is  a  mariner,         ......         5 

CAPTURE, 

eflect  of,  on  wages  ....      278,  d  .scr/, 

of  a  single  mariner  .  .  •  '2'i'J,  note, 

55 


443^^ 


li^^DEX. 


CARGO, 


money  of  shippers 
master's  relation  to 
wiien  consigned  to  mnstcr 
Iiis  duty  to,  as  master 
vessel  is  warranted  to 
hidinij  of 


stowage  ot 


must  be  under  deck 
must  be  good 
Avben  sliippcr  appoints  the  stower 
damage  to,  from  sailing  out  in  bad  weatiicr 
care  of,  on  the  voyage 
ship  is  hypothecated  to,  for  the  safe  carriage 
may  be  detained  for  general  average 
lien  for  is  good  against  government 
construction  of  the  bill  of  lading, 
when  master  may  hypothecate,  or  sell  . 
origin  of  the  power  to  do  so 
jettison  of  .  ... 

ransom  of     . 

transhipment  of  ... 

is  a  right 
when  a  duty 
master's  duty  to,  in  case  of  capture 
delivery  of  ...  . 

portions  of  saved  from  wreck,  liable  to  wages 
how  liable  to  seamen,  for  freight 
CARPENTER, 

is  a  mariner, 
CASTING  AWAY  A  VESSEL, 

punishment  for 
CHARTERER, 

when  to  be  deemed  owner 
CHARTER-PARTY, 

when  master  may  make 
effect  of,  on  lien  for  frieght, 

on  question  of  owner's  liability, 
when  merely  a  covenant  to  carry  goods 
CONFEDERATING  WITH  PIRATES, 
offence  of,  how  punished 


224  — 


243, 


.    182,  22G 

.     20t) 

.   200,207 

208,210 

208 

.    211 

212 

212  —  213 

213  —  214 
.    214 

215 

.    21G 

200 

.    217 

217 

217  —  224 

227,  229,  230 

224,  note. 

227 

.    228 

229 

.    229 

230,  d  scq. 

.    237 

238 

288,  note. 

325 


119  —  120 

334 

168 

244,  334,  336 

334,  et  seq. 

.    334 


.     123 


INDEX.  435 

CONFINING  THE  iMASTEU, 

offence  of,  how  punished           ....     123 
defined 124  —  125 

COLLISION, 

whether  responsibility  is  varied  by  the  presence  of  a 

pilot 195-197 

burthen  of  i)roof      .  .  .  •  197,  note. 

COXTRIBL'TIOX.     (See  Embezzleme.nt,  Negligence.) 
CONDONATION, 

of  one  of  several  offenders         .  .  .88,  note. 

when  presumed,       .  .  •  •  .8/      co 

mariner  entitled  to,  ordinarily,  if  he  repents,  &c.         150, 308 
effect  of  on  wages  otherwise  forfeited  .  .  308 

owner  may  grant  .  .  •  •  lb,  IJ 

CONTRACT, 

mariner's  .....        U,etseq. 

nature  of  .  .  •  •  1^ 

distinguished  from  other  contracts  of  hire,      11,  12 
is  a  contract  of  hire,  .  .     12,13,6.3 — 79 

forms  of         .  .  13  and  notes;  Gl — 79 

parties  to  ...  13,  et  seq. 

who  may  contract  as  a  mariner  .  14,  15 

master  makes,  as  owner's  agent  .        15,  lo 

owner  is  a  party  to      .  .  •  .18 

implied  obligations  of  owners  and  master  19 

to  pay  wages        .  .19 

that  voyage  is  legal    .  19 

that  ship  is  seaworthy      .      20 
that  voyage  shall    not  be 

deviated  from  .  24 

that  mariner  shall  be  treat- 
ed humanely  .  26 
that  he  shall  be  subsist- 
ed        .         27,  101,c<sf(7. 
that  he  shall  be  cured  at 

ship's  expense     .  27 

that  he  shall  be  returned 

homo  .  28 

implied  obligations  of  mariner  .  28,  d  seq.  303 

to  do  his  utniost  .  .  28 

that  he  is  comi)Ctent  .  .       29 


436  .  iNDKx. 

CONTRACT,  {Contimied.) 

tliiit  lio  will  render  Iiimsclf  on  hoard 

at  tlie  lioiir  aj^trecil  .  .       30 

to  ubiy  all  lawl'iil  conitnnnds      .  33 

whctlicr  this  extends  beyond  service 

ofliis  own  sliii)  .  .    34  —  36 

conclusivcnops  of,  as  to  wajics    .  .  .  .28 

liow  dealt  willi  in  the  admiralty        .  .  .        37,43 

when  not  in  writing       .  .  .  .  50  —  53 

in  fishing  voyages,  not  copartnerships  .  .    12 — 13 

in  baidc  and  other  cod  fisheries  must  be  in  writing         .       58 
in  whale  fisheries  not  rcf|iiircd  by  statute     .  .  CO 

forms  ol'liiriiig  .  .  .  .  .  61  —  76 

by  the  voyage         .  .  .  .02  —  69 

on  monthly  wages       .  .  .  G9  —  71 

on  a  share  of  freight  or  profits        .  .71  — 76 

not  dissolved  by  capture  ....     278 

or  embargo      ....  2S3 

or  shipwreck         ....     284 

dissolved  by  war      .....  282 

whether  it  admits  of  a  mariner  becoming  a  salvor  in  re- 
spect of  his  own  ship        .  .  .     287,  et  seq.  i29 
CO:\Ii^lON  LAW, 

remedy,  saved  to  mariners,  &c.       .  .  .  365 

forms  of  remedy,  in  contracts     .  .  .     366 

in  torts     .  .  .  367 

CONSIGNEES, 

when  may  appoint  a  master  .  .  .  161,  162 

when  may  take  a  bottomry  bond  .  .       178  —  179 

CONSUL, 

may  employ  local  police  to  arrest  deserters,  &c.  91,  136 

his  advice  not  conclusive  as  between  master  and  sea- 
men       .  .  .  .  .  .  91,  136 

when  he  may  discharge  a  deserting  mariner  .  137 

when  he  may  discharge  in  case  of  unseaworthiness  .      22 

of  mutual  consent     .  155 

of  deviation  .  ,       26 

to  exact  three  months'  additional  pay,  where  vessel  is  sold, 

&c.        .......     153 

unless  mariner  consents  to  be  discharged  without  it    .  155 

may  make  terms  with  the  master  to  protect  the  U.  States       1.55 
may  discharge  a  mariner  driven  away  by  cruelty         .  155 

and  exact  three  months'  pay,  &c.  .  .  .     155 


ixDEx.  437 

CONSUL,  {Continued.) 

to  send  home  destitute  seamen  .  .  .  155 

certificate  or,  prima  facie  evidence  of  a  refusal  to  receive  157 

is  tlie  proper  judge  what  sliip  to  send  liim  in  .  157 

siicli  mariner  amenable  to  tlie  laws  respecting  the  crew     ,  150 

COOK, 

is  a  mariner     ......  5 

COOPER, 

is  a  mariner     ......  a 

COST.^, 

due  as  much  as  the  principal  debt,      .  .  .  3"21 

CREW, 

includes  officers  and  men         .  .  .  .86,  note. 

CREW  LIST, 

required  to  be  delivered  to  collector,  .  .  .    151,152 

erasures,  &c.  in      .  .  .  .  •  .153 

to  be  produced  to  consul,  when  .  .  .  153 

D. 

DAMAGES, 

against  mariners  ....  304, 305 

consequential  .....  3t)0 

conqietency  of  the  admiralty  to  award  .  361,  355,  35G 

DANGERS  OF  THE  SEAS.  (See  Perils.) 

DEATH.  (5ee  Wages.) 

DEBTS, 

»       of  seamen,  contracted  while  belonging  to  a  ship,  not  re- 
coverable till  end  of  voyage     ....  32 

DECK  LOAD.     (.See  Cargo.) 

DE.MLRRAGE, 

whether  master  may  sue  for,      .  .  .        194,  note. 

DESTROYING  VESSEL, 

])unishment  for  ....       1 11>  — 120 

DESTITUTE  SEAMEN.    (See  Consll.) 

DESERTION, 

seamen  may  be  apprehended,  .  .  .31,  136 

must  i)C  prove<l   by  log-booU,   iiotwlllistanding  clause 

in  articles  .....      51,  I.i.) 

is  a  maritime  offence      .  .  .  •  .129 

defined 12!»-I3l 

fcffrct  of  condonation      ....       131 — 132 
by  statute     .  .  .  •  •  132 — 137 


ASS 


INDEX. 


24 


DEVIATION, 

Iiow  it  nfffcts  milliner's  continct 

as  ri'S|»t'Cis  ilic  cargo 

wIu'II  allowjible         .... 
DlSCIIAKGi:, 

will  II  American  consuls  m:iy  grant 

liy  master,  for  very  few  causes    . 

only  Cor  serious  oireiicos 

mariner  enlitleil  to  condonation,  if  lie  repents 

master  must  return  all  his  men 

consul  may  grant,  wlicn 

on  sale  of  ship  abroad 

three  months'  wages  to  he  paid  to  consul 

if  not  paid,  recoverable  on  return 

of  seamen, 
consul  may  dispense  with,  if  mar- 
iner consent 

by  malicious  forcing  on  shore,  tS^c. 

damages,  for  illegal 

in  a  case  of  semi  naufragiiim 

remedy  for,  when  tortious 

jurisdiction  of  the  admiralty  to  decree 
DISRATING, 

when  justified  by  imperfect  performance  of  duty  . 

temporary  appointments,  held  at  master's  pleasure 
DISOBEDIENCE.     [See  Obedience.) 
DRUNKENNESS, 

punishment  of,  in  loss  of  wages 


—  2G,598 

, 

j>;35 

• 

23G 

26 

148- 

-151 

, 

149 

150, 

.308 

, 

151 

154- 

■  1.55 

.   153, 

,  297 

. 

154 

154 


.  154 

1.57  —  158 

.  299 

301 

.  340 

372,  373,  374 


29 
30 


146 


E. 


EMBEZZLEMENT, 

contribution  for,  when  general 

when  not 

by  crew,  master  liable  for     . 

ENGINEERS, 

of  steam  vessels,  are  mariners 
may  sue  in  the  admiralty 

ENTIRETY  OF  CONTRACT, 

applies  to  all  forms  of  hiring 
modifications  of  the  principle 


142, 

143, 

,144 

Ibid. 

* 

217 

5 

• 

352 

62- 

-76 

• 

63- 

-76 

iM)£x.  -  439 

EXTRA  REWARDS, 

promises  of  to  a  mariner,  void         ...  28 

when  not  mentioned  in  articles,  wlietiier  recoverable     .       47 
in  nature  of  salvage  .  .  .      287,  et  seq.  377 

F. 

FATHER, 

may  sue  in  the  admiralty  for  son's  wages     .  .  350 

FIR  EM  EX, 

of  steam  vessels,  are  mariners  ...  5 

FISHERIES, 

foreigners  not  to  be  employed  in  .  .  9 

contracts  in  are  not  copartnershijts  .  .        12,  13,  75 

bank  and  other  cod,  contract  must  be  written  58 

what  it  must  contain  .  58, 59 

whale.     See  Whale  Fishery. 

contracts  are  contracts  of  hire  .  .  71 — 76 

lien  for  siiares        .....  314 

form  of  articles  in  the  bank  and  cod     .  .  .       389 

FOREIGN  SEAMEN, 

when  may  not  be  employed  in  vessels  of  the  United 

States        ......      7  —  10 

when  employed,  are  under  protection  of  laws         .       8,  157 
are  "mariners  and  seamen  of  U.  States"  157 
may  earn  wages  when  not  specially  prohibited  (3,  7 

when  entitled  to  be  sent  to  the  United  States  by  the  consul  157 
when  entitled  to  sue  in  friendly  courts  .  35G — 359 

FORFEITURE  OF  W^AGES, 

prijiciplcs  governing  total  or  partial  .  '303,  et  seq. 

FREIGHT, 

master  may  suo  for  .  .  .  .  194 

when  tiie  whole  may  be  earned,  though  vessel  disaiilcd 

yot)  _  0:3.-) 

erlrn,  rhargoai)iu  to  .slii|)]i(r,  on  tran^iiipnirnt  .  '2"i\) 

definition  of       .  .  .  .  .  .      210 

includes  passage  money  .  .  2-11 

master  may  collect        .  .  .  .  .212 

may  detain  goods  for  .  .  2-12 — 244 

may  enter  goods  in  his  own  name,  to  preserve  lien 

21."),  note 
lien  for,  when  waived         ....  243 

when  displaced  .  .  .  243, 244 


440  liSDiox. 

niElGMT,  (Continued.) 

mil  1)0  cnforrrd,  only  ulicn  poods  iiic  uiiladrn      245 
oiivors  )i;iit  of  tin;  <;oo(ls  lor  llii;  wliolt;  124."),  note 

full,  canu'd  only  l»y  delivery  us  coiitracied  for  245,  24G 

except  where  delivery  prevented  or 

waived  by  shipper  .  24G,  247 

or  liy  the  s^overninent  of  ilic  place  247 

temporary  impediments  to,  may  be  waited  for     247,  248 

pro  7-ala,  ulien  duo  ....       248,  249 

may  be  liypolbccated  ....  249 

wiili  tlic  ship,  l)oforo  the  cargo  249 

when  omitied  from  the  bond      249,  250 

wlien  included,  what  is  meant  250 

in  wiiat  sense  "  the  mother  of  wages"  .  271  — 278 

lien  on,  for  wages  .  .  .     ^20,  323,  et  scq. 

restitution  of,  after  capture  and  condemnation  325 

G. 

GENERAL  AVERAGE, 

whether  cure  of  seamen  is  .  .  .         108,  note 

cargo  may  be  detained  for     ....         217 
lien  for,  good  against  government  .  .  .     217 

II. 

HARBORING  SEAMEN, 

a  statute  offence,  after  they  Iiave  sliipped      .  .  32 

HEALTH 

is  im[)lied  in  mariner's  contract  at  shipment  .            30 
of  seamen.     Sec  Sickness  of  Seamk.\. 

HIRING  OF  SEAMEN, 

by  master,  as  owner's  agent         .             .  .         15 — 18 

when  must  be  in  writing          .            .             .  37  —  C2 

forms  of    .....  .                  61 

by  the  voyage  or  run                 .             ;             .  62  —  G9 

on  monthly  wages            .             .             .  .        69  —  71 

on  a  share  of  freigiit  or  profits              .             .  71  —  76 

HOSPITAL  MONEY, 

what  and  in  what  voyages  required  to  be  paid  .           116 

whether  whaling  vessels  included              .  .117,  7iole 

HINDERING  OF  MASTER 

from  fighting  in  defence  of  siiip,  punishment  for         .         121 

HYPOTHECATION.     See  lioTTOMRV.     Lien.     Freight. 


IXDEX.  441 


T. 


IMPRISOXMEXT  OF  SEAMEX, 

on  board  .  •  •  •  •  .90 

in  foreign  jails  .  .  .  .  •       "0,  Jl 

in  home  port      ....  SO,  3] ,  91 ,  note 

whether  costs  and  charges  may  be  deducted  from  wages 

yj,  note 

IXFAXT 

cannot  alone  enter  into  mariner's  contract  .        14, 15,  340 

tortious  abduction  of    .  •  •  •  340 


JETTISOX 

cannot  be  made  by  crew  alone     .            .  •            .83 

anciently,  master  obliged  to  consult  the  crew  .            82 

and  is  now  by  the  French  law     .            •  •            .      c^ 

otherwise  by  our  law             .             .             •  •     ^^j  — ' 
master  alone  determines,  and  selects  what  he  pleases  227, 228 
JUSTIFIABLE  CAISE, 

under  Act  3d  March,  1835           .             .  •          86,note 

JURISDICTION 

of  Courts  of  Admiralty.     See  Admiralty  JtRisDicxio^f . 
of  Courts  of  Common  Law.     .S'ee  Commo.v  Law. 


IfiO 


LIEiN 

on  vessel  by  the  contract  of  afTreightmciit 

how  lost  .            •       I'O 

on  cargo,  for  general  average         .             •             •  •            " " 

on  goods,  for  freight    .  .  .  •  •        "4 4a 

when  waived              .             •  •             -^'^ 

when  disiilaced  by  rliartcr-party  243,  244 

of  master,  on  freight          ....  253,  c<  se?. 

mnrilime,  nature  «)f     .             .             .             .  •     315,  .{!(),  .M/ 

on  vessel,  for  wages           .             .            •             •  '.M-^dsrq. 

ndhens  to  tin;  last  fragment  .             3i:?,  318 

ftitiridalion  of             .              •  •               '"4 

voyage  must  l)e  Ic-gal  to  give  .             .   V.\  315 

unless  mariners  innocent  I'.',  315 

66 


41'2  iNOKx. 

LIEN,  {ConUmicd.) 

on  vessel,  for  wiiiros  in  fisheries         .  .  .  314,  3G4 

nature  of     .  .  .  .      315, 317 

adiieres  to  proceeds      .  .  .  317 

not  devested  by  sale  .  .  317 

restored  by  n^siitntion  after  capture  317 

good  against  government     .  .  317 

]>reeedenee  of  over  oilier  claims  318 

how  lost  ....      318 

by  destriiotion  of  ship        .  318 

by  payment  or  its  equivalent  319 

by  laches  .  .  321 

not  by  prescription     .  321  —  323 

enforced  in  the  admiralty  3G3,  et  seq. 

on  freight,  for  wages,  given  by  general  law  .  .  323 

how  enforced        .        .  .  .        324 

against  the  goods  for  freight  325 
against  freight  wlien  resti- 
tution is  made  325 
attaches  to  the  last  fragment  325 
LIMITATIONS 

at  common  law,  to  suits  for  wages  .  .  268 

statute  of,  not  applied  to  suits  in  the  admiralty  2G9 

principles  of,  by  whicli  admiralty  courts  are  governed       209 

M. 

MALICE, 

meaning  of  in  Act  3d  March,  1835      .  .  .      86,  note 

MARINER, 

definition  of  ....  . 

who  are  included 
who  may  contract  as        . 
MASTER 

is  a  mariner  ..... 

makes  contract  with  seamen  as  owner's  agent 
his  implied  power  to  do  so 
but  not  always  a  nccessarp  party 
substituted,  relations  to  crew 
his  wages,  named  in  articles 
must  take  copy  of  articles  from  collector 
and  crew,  list         ..... 


3,4,5 

• 

5 

.      14 

• 

5 

15, 

16, 172 

1 

72,  320 

17 

.      17 

, 

47 

.      48 

• 

48 

INDEX. 


443 


MASTER,  (CoJifniwef/.) 

must  produce  articles  to  consul,  when 
authority  of,  how  founded 


34 


48,49 

33  —  36,80 

.      81 

81—83 

36,81 

.      85 

86  —  89 

88  —  90 

90,91 

/o,  /o 

91—93 

161,  c<  seq. 

161 

161 

IGl,  102 

175,  note 

102  —  166 

104,  105 

165,  106 

167 


IS  supreme 

is  confined  to  sliip's  service 
may  punisli 
how  and  when 
corporally 
by  imprisonment 
hirinjr  vessel  on  shares  makes  him  charterer     . 
relation  of  to  passengers 
relation  to  vessel  and  owner 
how  appointed,  and  by  whom 
may  appoint  successor,  when 
appointed  by  consignees 
by  churterei-s 
how  removed       ,  .  .  .  . 

dismissed  without  good  cause,  entitled  to  damages 

otherwise,  when  only  under  a  general  retainer 

cannot  quit  the  ship,  and  withdraw  from  his  contract 

agency  of,  for  the  owners  ....  167 

must  employ  ship  as  they  direct      ....       168 

must  employ  it  as  it  has  usually  been  employed  .  168 

when  he  may  make  charter-party  .  .  .       168 

in  home  port        ....  168 

in  foreign  port  ....       109 

may  receive  goods  in  a  general  ship      .  .  .  169 

owner  bound  by  bill  of  lading         .  .  .     109,170,171 

siiip  is  also  liound  to  the  contract  of  afTroiglitmont  109,  170 

but  tiic  carriage  of  goods  tnust  be  the  usual  enii)loyment  of 
the  ship  ......     170,  1^1 

his  general  and  presumed  authority  to  sign  bills  of  lading        171 

to  hire  marinei-s  .         172 

to  order  repairs,  &c.  172 

in  home  port    172 

abroad  173 

what  repairs  arc  included  in    173 

power  to  give  a  bottomry  bond         ....         175 

only  whi'ii  ho  cannot  git  prrsonal  credit  176 

wln;ther  this  embraces  his  own  credit  176 

may  unite  personal  and  iioltomry  security    177,  178 


.i-ii  INDKX. 

MASTER,  {Continuctl.) 

ailvanccs  mny  be  before  bond  is  tnndc  178 

power  ceases  wlicn  an  agent  or  part-owner  is 

present  .  .  .  .  .178 

exceptions  to  tiiis  .  .  .     178,  179 

may  sometimes  give  bond  to  agent      .  .      179 

bond  must  be  given  for  ship's  necessities  at  the 
time  .....  180 

on  what  voyage  .  .  .         181,  182 

must  llrst  apply  owner's  money      .  .  182 

vvhetiicr  hound  lo  apply  bis  own         .  .     182 

wiiethcr  tiiat  of  shippers         .  .  .  182 

bond  nnist  ho  given  in  a  foreign  ])ort  183 

construction  of  tiiis  rule  in  England  .  183 

in  France      .  .      184 

in  America  184,  185 

power  to  sell  ship  .  .  .  .  .  186 

a  modern  jiower  .  .  18C,  187 

rule  in  England  .  .  .  187 

in  America    .  .  .  187,  188 

may  sell  in  a  port  of  the  owner's  country      188 

necessity  that  will  authorize  it  .  189 

defined  in  dilForent  courts        189  —  193 

includes  power  to  sell  the  rigging,  &c.  193 

has  a  special  property  in  the  ship  .  .  .  194 

may  sue  for  freight   ......     194 

diligence  incumbent  on  him  towards  third  persons        .  195 

owner's  liability  for  his  torts  .  .  .       195  —  200 

not  liable  for  wilful  trespasses  of  crew   .  .  195,  note 

when  his  misfeasance  or  nonfeasance  creates  a  lien  on  the 
ship  ......         200,207 

his  personal  liability       ....  200  —  205 

in  cases  of  contract      .  .       200 — 203 

* 

how  he  may  limit  it  .  .  202 

when  it  does  not  arise  .  .     203 

for  wages  of  seamen  .  .      203,204 

in  cases  of  tort  .  .  .      204 

done  to  mariners    337,  et  seq. 

his  relation  to  the  cargo  ....  206 

when  he  is  consignee  .....      20G 

capacity  distinguishable  from  his  other 

character  .  .  .  207 


INDEX. 


445 


MASTER,  {Contmued.) 

in  his  official  character  a  stranger  to  the  cargo 

except  for  certain  purposes 

warrants  fitness  of  his  vessel 

bound  to  keep  it  fit,  on  the  voyage     . 

is  a  common  carrier         .... 

■warrants  sutficiency  of  the  crew 

bound  to  take  a  pilot       .... 

his  duties  in  the  reception  of  goods 

in  stowing  them 
responsible  for  goods  lost  from  deck 
for  bad  stowage 

how  if  shipper  appoints  the  stower 
not  to  sail  in  tempestuous  weather 
to  take  the  utmost  care  of  cargo 
may  detain  goods  for  general  average     . 
what  losses  he  is  not  liable  for 
burthen  of  proof  on  liiin 
when  burthen  of  jiroof  is  changed 
when  negligence  of  is  material 

immaterial    . 
when  he  may  hypothecate  cargo 

liow  much  of  it 
when  he  may  sell  cargo 
,  can  sell  only  a  part 
is  alone  authorized  to  make  a  jettison 
may  make  contract  of  ransom 
when  at  liherty  to  tranship  cargo 
when  hound  to  do  so  .  .  . 

when  he  may  deviate  from  the  voyage 
duty  in  case  of  cai)lure 
duty  in  delivery  of  cargo 
his  relation  to  the  freight 
may  collect  and  sue  for  it         .  . 

may  detain  goods  for  it         . 

prerequisites  to  this  right 
may  hypotliccate  freight 

his  wages  ..... 

how  contracted  for 
not  a  lien  on  the  ship 
whether  a  lien  od  the  freight 


.      208 

208 

208  —  210 

209,  210 

208, 223 

.    210 

210 

.    211 

212  —  21.5 

212,213 

213,  214 

.     214 

215 

.      21G 

217 

218—220 

220 

22 1   222 

220  —  222 

.       223 

224  —  227 

oon  007 

225,  229,  230 

.       225 

227 

.      228 

229—235 

.      229 

.     235, 23G 

.     237 

2:38 

.      210 

241   242 

.      244 

245 

.      249 

251 

.      251 

,      252, 3(i3 

.      253 


•  1,1,6  INDEX. 

MASTER,  {Continued.) 

])ors(Mial  rcmody  for  ngninst  owner 
his  wajips  in  case  of  raptiiro 
his  udvuiices  and  liubilities 

give  a  lien  on  the  freight 
Pcojio  of  his  contract  duties 
liability  to  seamen  for  \vagos 

wiicn  ho  has  not  liircd  them 
when  he  is  only  substituted 
for  torts  done  by  others 
for  tortious  discharge 
to  a  parent  for  tortious  abduction  of  child 
niaj'  sue  in  tiie  admiralty  in  personam 
cannot  sue  in  rem,  having  no  lien 
petition  by  against  remnants,  &c. 
MATE 

is  a  mariner  ..... 

is  one  of  the  "crew"     .... 

his  authority  and  office        .... 

general  function  .... 

whether  bound  to  be  a  navigator    . 

diligence  required  of  him         .... 

succeeds  on  death  or  absence  of  master     . 

no  authority  to  jjunish  crew    .... 

responsibility  of  for  losses 

is  a  "seaman"  within  the  crimes  act 

becoming  master,  retains  his  remedy  in  rem  for  his  wages  as 

mate        .......  3G3 

MEDICINE  CHEST  AND  DIRECTIONS, 

what  and  when  required  by  statute  .  .  Ill 

how  far  a  substitute  for  attendance  of  physicians    112  — 117 
held  not  to  be,  in  a  case  of  yellow  fever  .  1 13,  note 

MINOR.     See  Infant. 
MONEY 

of  shippers  ......  226 

of  the  ship-owner      .....        227,  note 

MORTGAGEE, 

when  to  be  deemed  owner  .  .  .  331 — 334 

MUTINY, 

how  may  be  quelled        .....         90 

what  is         .  .  .  .  .  .      90  &  note 


254 

• 

255 

255 

255, 

257 

258 

326,  ct 

seq. 

326- 

-328 

327 

337,  et 

seq. 

340 

310, 

,341 

351, 

,363 

, 

363 

• 

364 

• 

5 

86, 

note 

94- 

-100 

• 

95 

• 

96 

97,98 

, 

98 

• 

99 

• 

100 

124, 

,  note 

INDEX.  447 

N. 

NATIONAL  CHARACTER, 

ofseamea         ..... 
when  concluded  I)y  that  of  vessel 
when  foreigners  may  not  be  employed  in 
vessels  of  I'nited  States 
in  fishing  vessels 
statutes  respecting 
construction  of        . 
NECESSARIES, 

what  are  in  respect  of  repairs,  &c. 

in  respect  of  a  bottomry  bond 
NECESSITY, 

case  of,  to  justify  hypothecation  of  ship 
Sale  of  ship  by  master 
bottomry  or  sale  of  cargo 
deviation 
jettison 
ransom     . 
NEGLIGENCE, 

general  contribution  for  losses  by 
when  individual  alone  liable 
damage  must  be  actual 
in  cases  of  collision,  burthen  of  proof  of 
in  a  conmion  carrier,  immaterial 
when  material,  the  loss  being  prima  facie  by  an  ex- 
cepted cause  ....  220  —  223 
when  it  must  be    roved               .            .            .      220  —  223 


. 

G 

7, 

note 

n 

7,8 

y 

7- 

-10 

< 

3,10 

174 

180, 

,181 

180, 

,181 

187- 

-194 

224- 

-235 

235 

, 

227 

228 

. 

145 

145 

,146 

• 

145 

197 

, 

223 

O. 

OBEDIENCE 

of  lawfid  commands     . 

33 

when  disobedience  forfeits  all  wages 

147 

OFFENCES, 

maritime            .... 

118—147 

OFFICER 

punishing  seaman  excessively 

20,  29 

general  standing  of          .            .            . 

97 

OWNER, 

master  contracts  for  with  seamen 

15  —  18 

is  a  party  to  the  roiitract 

18 

may  revoke  mH.st<,r's  agi.-ncy 

18 

concurrent  authority  of  to  remit  Ibrfuiturca 

19 

448  ii\Di:x. 

0\\"S Ell,  (Continued.) 

bound  to  pny  wngos  .  .  .  .  10, 3'i8 

liis  imiilii'il  sii|>iilatio?is  with  tlio  mariner  .  ,      19  —  28 

AvliL'ii  In-  may  dismitss  tlio  Mnslt.'f  .  .  IG'i —  IGG 

■wlit-n  lialilo  to  master  for  dnmngcs       .  .  .      IGl,  1(!5 

liow  Id  njiossiss  liiiiisill"  ol'  liis  vessel     .  .  ,         KiG 

niav  not  keep  tlie  master  aluoad  indefinitely  .  1G7 

liability  of  I'or  mastei's  contracts  .  .         1G8,  d  seq. 

in  cases  of  cliartor-party 

1G8,  1G9 
of  l)il!s  of  lading 
109-172,197/^08,209 
of  hiring  of  sea- 
men        .      172, 328 
of  repairs,  &c. 

170_i7r,,331,334 
of  bottomry  bonds 

1 75,  et  seq. 
liability  of  for  his  torts        .  .  195  —  200,339  —  341 

in  cases  of  collision  .  .       195 

of  tortious  discharge    of 

mariners  ,  197, 340 

of   tortious   abduction  of 

infants  .  .  340 

of  bills  of  lading,  &c.       197,  198 
how  limited  on  the  continent  of 

Europe     ,         198,  199 

in  England         .  199 

in  America  199 

real  liability  of,  by  a  lien  on  the 

ship  .  .  197,  rjo^e,  200 

not  liable  for  wilfid  trespasses  of  master  and  crew     195,  note,  339 

is  a  common  carrier  ....  209 

liability  of  fur  wages  of  crew  .  .  328,  et  seq. 

when  not  known  to  them  .        328,  329 

when  his  name  is  not  in  articles  329 

who  is  to  be  deemed  in  reference  to  contract  of  crew  329.  et  seq. 

remains  liable,  though  he  sell  the  ship        .  .  .     329 

not  on  new  contracts    330 
when  underwriters  become  .  .  .  330, 331 

when  mortgagee  is  to  be  deemed        .  .  331  — 3>'j3 

when  charterer       .....        334 — 336 
when  general  owner  remains  owner  for  the  voyage  334 


ixDEx.  4-i.9 

p. 

PARENT  AND  CHILD.     (See  Abduction,  L^fant.) 

PARDON.     {See  Co.ndo.natio.v.) 

PARTNERS, 

seamen  and  owners  in  fisheries  are  not  .     12  — 13,75 

PASSENGERS, 

master  may  restrain  them  in  what  .  .  .91 

when  bound  to  rentier  services         .  .  .91 — 92 

may  quit  at  any  time      .  .  .  .  .92 

must  behave  with  good  breeding     .  •  .    92,  note. 

provisions  for  use  of      .  .  .  .  92  —  93 

put  on  sliort  allowance,  when  may  recover  of  master  93 

PAYMENT, 

what  is  equivalent  to,  so  as  to  divest  a  mariner's  lien         319 

PERILS  OF  THE  SEAS, 

what  are  included    ....  218  —  220 

PILOT, 

is  a  mariner        ......  5 

sea-pilot  and  const-pilot         .  .  .  .  .5 

may  entitle  himself  to  salvage     ....    289,290 

lien  of  .  .  .  .  .  .        3G3,  note. 

POSSESSION  OF  SHIP, 

how  the  owner  may  obtain  .  .  .  106 

PRIVILEGE.     (5ee  Lie>.) 

PROFESSIONAL  CHARACTER 

of  mariners  or  seatnen  .  .  .  3  —  G 

PROVISIONS, 

owner  bound  to  furnish,  as  part  of  mariner's  com|)Pn- 

eation,  by  general  principles  of  the  contract    27,  101,  et  seq. 

exception,  by  the  usage,  in  certain  fisheries, 

deficiency  of  justifies  desertion 

amount  required  by  statute 

is  for  all  the  crew 

fi)r  what  voyages 

failure  of  gives  claim  for  extra  pay,  wiicn 

whether  suiistitutes  can  be  used 

for  use  of  |)as9cngcr3 

PUNISHMENT, 

if  excessive,  wl.nt<lnmagPH 

rriniinal  prosecution  for 

moderate  mny  be  inflicted 

but  by  Miaster  alone 

may  bo  for  past  oflunces 

57 


, 

27 

, 

24 

. 

102 

. 

103 

, 

103 

, 

103 

, 

lot 

.  92- 

-93 

27,  8.") 

~3G 

, 

85 

.  85- 

-i^G 

83 

• 

87 

•150 


IM")F,X. 


• 

88 

.   88 

-89 

87- 

-88 

.   88- 

-89 

89- 

-90 

.  90- 

-91 

228 

• 

228 

• 

228 

197,210,219 

55  note. 

55  7iote. 

rUMSiniENT.    {Continual.) 

means  of  ...  . 

corporal  ..... 

clVoct  of  prosiiiuoil  condonation 
no  particular  instrument  fi.xcd  by  law 
deadly  weapons  can  be  used  only  in  mutiny 
by  continemcnt         .... 

R. 
RANSOM, 

prohibited  in  England 

otherwise,  in  our  law 

cargo  may  be  bound,  as  well  as  ship 
RATS, 

loss  by,  when  a  peril  of  the  seas 

RECEIPT  IN  FULL, 

by  a  seaman,  when  conclusive    . 
RELEASE, 

of  a  seaman,  when  may  be  controverted 

REMNANTS  AND  SURPLUS, 

petitition  against  allowed  to  a  master 

REMEDY, 

for  wages    ..... 

against  the  ship 

against  the  freight 

against  the  master 

against  the  owner 

for  personal  torts  .... 

against  the  actual  wrong  doer 

against  jjresumed  joint  tresp.isser 

not  against  owner  for  trespasses 

against  the  owner  for  other  torts 
REVOLT, 

pmiishment  for  ....     120—123,128 

endeavor  to  make  ....      123  —  129 

RIGGING, 

master  may  sell  after  shipwreck     ....     193 

losses  by  defects  of,  when  goods  are  taken  on  board  211  —  212 
RUNNING  AWAY  WITH  VESSEL,  &c. 

piratically,  punishment  for        ....  120 

S. 
SALE, 

of  ship  abroad,  what  damages  due  mariners      .  .         297,429 

[See  Master.     IJottomkv.) 
of  cargo.     (.S'ee  Cargo.    Master.) 


.    3G4 

.    313 

313  —  323 

323  —  326 

32G  — 328 

328  —  336 

337  —  341 

337,  338 

337,  338 

.    339 

.  340,341 


353, 

354 

• 

3GG 

20 

21 

, 

22 

23 

le 

352,  353 

304, 

305 

INDEX.  451 

SALVAGE, 

whetlier  master  can  send  crew  on  salvage  enterprise    34  —  36 
Avhether  crew  can  earn,  of  llieir  own  ghip  267,  et  seq.  377,  429 

may  in  cases  of  rescue  .  2S9 

SEAL, 

effect  of  in  the  admiralty  jurisdiction 

at  common  law  ...... 

SEAWORTHLXESS, 

is  implied  in  mariner's  contract 
survey  to  ascertain  in  borne  port 

abroad 
failing  during  the  voyage 
SERVANTS, 

of  passenger  ships,  &c.  whether  entitled  to  sue  in  the 
admiralty  ..... 

SET-OFF, 

against  the  claim  for  wages 

SHIP, 

bottomry  on.    (See  INL\steb.) 

sale  of.     [See  Mastkr.) 

is  hypothecated  to  the  cargo       .....     200 

lien  on  for  re|)airs,  &c.  .....  200 

for  damage  done  by  collision      .  .  200,  196,  note. 

for  wages.     (See  Wages,  Lien.) 
SHIPMENT  OF  SEAMEN, 

by  master,  is  f  ir  owner,  and  rice  versa,  .  .   .  .17 

when  must  be  by  written  contract  .  .  38 

abroad      .  .  .  .  .  .  .49 

by  parol,  when  void  .  .  .  .50  —  53 

cflect  of  .  .  .  .50  —  53 

forms  of         ......  61 

by  tiic  voyage,  or  for  the  run      .  .  .  .62 

SHORT  ALLOWANCE, 

passengers  put  on  .  .  .  .92  —  93 

seamen  put  on  ....  lOQ,  el  seq. 

what  is     .  .  .  .  .  .  .106 

SICKNFSS, 

of  seamen  .  .  .  .  .  .27 

articles  will  not  restrain  the  right  of  cure      .  .   ry'i,  note. 

rigiit  t)f  cure  at  aliip'a  cxiiensc  a  general  and  universal 

right  .....  ]()(;_]  II 

wiiat  it  includes  ....       107 — 110 

extcndu  to  the  mule  .  .  .  .  110 


452 


INDEX. 


SICKXESS, 

sfHiWe,  to  tlie  ninstcr        .  .  .  .110 — 111 

wliotlier  expenses  general  average     .  .  108,  note. 

statute  regiilutions  .  .  .  .  .111 

Jiow  far  tliey  control  the  general  right  .  112 —  117 

whotlior  mariner  may  insist  on  heing  i)Ut  on  sliorc         .     113 
wages  not  interrupieil  ....  290 

SLAVE, 

master  may  sue  for  wages  of,  in  admiralty  .  350,  note. 

STATXJl'ES  OF  THE  I'MTED  STATES  cited  and  commented  on, 

act  30ih  April,  17!l0,  ch.  30  .  .  .  .   121,  123 

20th  July,  1790,  ch.  56,        12, 16,  21,  31,  32,  33,  38,  39  50, 

102,  103,  111,  112,  132, 133, 134, 140,  141,  142,  264,205, 

267,304,314. 


IGth  July,  1798,  ch. 

94     . 

* 

• 

.   116, 

117 

3d  May,  1802,  cli.  5 

1 

, 

. 

117 

28th  Fehruary,  1803,  ch.  62      152, 

153,  156,157,268,297 

26th  March,  1804,  ( 

:h.  40      . 

• 

•                        * 

120 

3d  March,  1813,  ch. 

184 

• 

• 

8 

19th  June,  1813,  ch 

.2 

• 

58,  59,  60, 

314 

1st  March,  1817,  ch 

.206 

t 

. 

9 

2d  March,  1819,  ch 

170 

• 

.  93,  103, 

360 

3d  Marcli,  1825,  ch 

.  276 

• 

.    157, 

158 

3d  March,  1835, ch. 

40,  [313] 

• 

27,  85,  86, 

128 

20tli  July,  1840,  ch. 

23        23, 48, 

49, 

50, 

51,91,  136, 
152, 

137, 
155 

STATUTES  OF  GREAT  BRITAIN,  cited, 

16  Car.  2,  ch.6 

•                         • 

• 

•                         • 

12 

22  &  23  Car.  2,  ch.  11 

•                         • 

• 

• 

12 

2  Geo.  2,  ch.  36 

•                          • 

• 

12,  16 

31  Geo3,cii.39       . 

•                         • 

• 

.       12,  16 

5  &  6  Wm.  4,  ch.  19 

.       12,  16,  30, 

40, 

41 

57,  65, 107, 

265 

3  &  4  Vict.  cli.  65 

. 

• 

. 

344 

STEWARD, 

is  a  mariner 

• 

• 

• 

5 

STOWAGE, 

master  and  owner  responsihle  for 

• 

212- 

-215 

except  when  cliarterer 

appoints  stower 

. 

214 

SUBSISTENCE, 

is  part  of  tlie  mariner's  contract 

. 

27, 101,  et 

seq. 

deficiency  of  jusli 

fics  desertion 

• 

• 

24 

(See  PaovrsiONS.) 

i:<DEx.  453 


• 

362 

• 

362 

• 

31 

• 

263 

3.37- 

-341 

360,  361 

,362 

SURGEON, 

is  a  mariner 


"TEN  DAYS" 265 

TIDE   WATERS, 

within  the  ailmiralty  jurisdiction 
in  foreign  ports         .  .  ,  . 

TliME, 

for  mariner  to  render  liimself  on  board 
when  wages  due  and  payable 
TORTS  TO  THE  PERSON, 
remedy  for         • 
admiralty  jurisdiction  over 
TRANSHIPMENT.     (See  Master.     Cargo.     Freight.) 

V. 

VOYAGE, 

legality  of  ......       19 

ceriaiiny  of     .....        24  —  26,295 

articles  must  describe        .  •  .  .        37,  et  seq. 

what  requires  written  contract  .  .  ,        39,  58 

what  it  imports      .  .  .  .  .  .39 

how  to  be  construed  ....  40 

"  foreign,"  what  is  .....       60 

fishmg  .  .  .  .  .  .58 — 60 

divisibility  of,  for  the  purpose  of  wages     .  .       273  —  278 

when  outward  ends  and  homeward  begins     .  276,  note. 

aijandonmeiit  of,  gives  tnariners  a  claim  for  damages  295 


WAGES, 


\V 


not  a  lirn,  on  illegal  voyage  .  .  .  .19 

unless  mariners  innocent  ....  20 

when  amount  in  artirlcH  is  conclusive        .  .  46  —  48 

when  omiiti;d  from  articles      ....  47 

forfeiture  of,  may  be  purged,  notwithstanding  a  clause  in 
articles  .  .  .  .  .  .53  note. 

right  to,  reslrnincd  in  nrticlea         .  .  .  54  —  58 

earned,  if  fr<Mgiit  earned  .  .  .56  —  58 

time,  when  payable  .  .  .  .  .58 


4")V  liNDEX. 

WAGES.     (Conttmicd.) 

nppoitioiiiiuMit  of,  in  contrncts  by  the  voyage,  or  riui         .       G3 

in  oilier  contracts.     {See  Apportionment.) 
of  master.     (Sec  Master.) 

when  due  and  payable       .  .  .  .  •     263 

how  soon  may  bo  sued  for      .  .  .  .  204,  205 

libel,  when  filed  .  .     207 

process,  when  issued  .  204.  207 

one  third  only  deniandable  in  a  foreign  jiort  .  .     207 

exceptions  .  .  268 

when  barred  at  common  law  ....  268 
when  claim  for  stale  in  the  admiralty  .  .  209 

how  far  dependent  on  the  earning  of  freight  271  —  278,  287 
due,  where  freight  is  or  iniglit  have  been  earned  272,  275,  297 
lost,  when  freight  lost  .....  273 
advance,  not  returned,  in  such  case     .  .  .  274 

due,  as  far  as  freight  is  earned       ....     275 
at  port  of  delivery  ....  275 

port  of  destination  is         .  .    275 

right  to  not  varied  by  contract  between  ship-owner  and 

freighter  ....  272,275-270 

for  outward  voyage  and  homeward  voyage     .  .  270 

due  for  half  the  time  of  ship's  stay  at  last  port  of  de- 
livery, &c.  .... 
not  abated,  by  partial  losses  of  freight 
right  to,  i-estored  by  indenmity,  salvage,  &c.    . 
due  where  freight  earned  at  successive  ports 
right  to,  only  suspended  by  capture     . 
x-estored  on  release  of  ship 

on  restitution,  after  decree  . 

how  much  due,  in  such  cases 

indemnity  presumed  to  include  freight       282 

contract  for,  dissolved  by  interdiction  of  commerce  by  war    282 

suspended  only  by  an  embargo  .  283 

in  case  of  shipwreck,  how  preserved  .  .      284  —  290 

lien  on  materials  saved  .  284 

whether  by  way  of  salvage  284  —  287, 429 

or  as  wages  on  original 

contract         .      284  —  287 

whether  a  further    compensation 

can  be  earned       .  287  —  290,429 

in  sickness,  not  interrupted       ....  290 


276- 

277 

2,270, 

277 

.  277, 

278 

, 

278 

.  278, 

279 

, 

278 

280, 

,281 

280 

L\DEx.  455 

WAGES.    {Continued.) 

unless  occasioned  by  mariner's  own  fault       .    291 
when  the  disability  occurs  before  sailing  291 

in  case  of  death,  semble  they  are  due  only  to  the  decease       291 
by  the  foreign  law      .  .    292  —  294,295 

in  England,  not  decided  .  .  .     294 

in  America,  contiadictory  decisions     294,  295 
in  the  wliale  fishery,  provided  for  in  the 

articles        .  ..  ,  .  295 

on  change  or  abandonment  of  voyage        .  .      295 297 

voluntary  sale  of  vessel  abroad     297 

deviation  ,  .  .     298 

in  case  of  wrongful  discharge  .  .  .  299 

abroad  .  299,  300, 301 

before  sailing     .        299,  300,  301 

in  case  of  discharge  on  account  of  innavigability  of  vessel  301,  4^29 

forfeiture  of,  deducible  from  mariner's  contract  .  303 

is  a  civil  compensation  .  .  ,    304 

not  dependent  on  statute  .  .  305 

damages  must  be  legally  fixed  .  .     305 

total  only  in  aggravated  cases       .        305,  306,  307 

is  always  retros|)ective  .  .  .    307 

how  apportioned  upon  the  voyage  .   307,  308 

cured  by  condonation  ,  .  308, 309 

not  applied,  when  other  punishment  has  been    309 

cannot  be  insured  •  •  .  .  .     274 

when  mariner  is  taken  out  by  captors,  &c.       .  .  279 

remedy  for 3\3,  d  seq. 

''en  for 213,  et  scq. 

on  ship 313  —  323 

voyage  must  be  legal    .  .  .  315 

nature  of     .  .  .  .315  —  317 

not  defeated  by  sale      .  .  .  317 

good  against  government    .  .  .     317 

revives  on  restitution  after  capture       .  317 

precedence  of  over  all  claims         .  .     318 

how  lost  .  .  .  318  —  323 

by  (lestniction  of  islii|)       .  .     3]a 

by  [tayment  or  iia  e<|uivalent  .  319 

by  laches,  iVc.        .  .  .     ,'{yi 

not  by  prescription     .        321,322,32.3 
on  freight     .....     323  —  325 


\5G  1NT5EX. 

WAGES.     (Continual) 

lion  for  on  ficiglit  (continued.) 

cstublislicd  by  the  general  law  .  323 

how  enforced  .  .         324, 325 

attaches  to  the  last  fragment      .  325 

where  Bhip  and   cargo  belong  to 
one  owner 
personal  remedy  for 


one  owner 

325 

•            •            •             • 

.    32G 

against  master    . 

326  —  328 

substituted  master     . 

327, 328 

owner 

328  —  336 

does  not  require  owner  to  be  named 

in  articles 

329 

against  original  owner 

329,  330 

not  devested  i)y  sale 

330 

against  underwriters 

.    331 

mortgagees 

331—334 

charterers     . 

334,  336 

idmiralty 

345,  et  seq. 

jurisdiction  over,  in  admiralty 

includes  all  parties    347,  349,  350 

352 
not  affected  by  a  seal  353,  354 
when  in  foreigner's  cases    356  — 

359 

at  common  law    ....    365 
WARRANT, 

to  apprehend  deserting  seamen                .  .            .31 
WHALE  FISHERY, 

voyages  held  not  "  foreign  voyages"  .             .         .       60 

statute  declaring  them  so       .             .  .             .           428 

contract  includes  return  to  home  port     .  .         74  —  75 

seamen  not  copartners  with  owners  .            .             75 
whether  vessels  bound  to  pay  hospital  money    .         117,  note. 

whether  shares  can  be  insured,  qricBre  .            .  274,  iiote, 

contracts  cognizable  in  the  admiralty  .          353,  364 

form  of  articles  in  port  of  New  Bedford  .            .            391 

of  Nantucket  .            .     395 

usages  in       .            .            .            .  .            .   394, 396 

Y, 

YELLOW  FEVER.    (See  Medicine  Chest.) 
YIELDING  UP  VESSEL,  &c. 

voluntarily,  to  pirates,  punishment  for   .  .  .     120 


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